Copyright reform in Germany

The German Act on Copyright and Related Rights (Copyright Act, UrhG) dates back to 09.09.1965. Its basic assumptions are shaped by the use of the intellectual property of others that was common at the time, and especially by the then prevailing state of technological development. New technologies repeatedly led to changes in creative processes and user behaviour in relation to intellectual property. As a result, the Copyright Act has undergone several amendments to adapt it to current developments. Digitisation has had, and continues to have, the most drastic effects ever on creative work and user behaviour and, therefore, on copyright. In German law, too, digitisation brings to light an aspect of internationalisation that is becoming more important in practice.

International background

Following the implementation of the World Intellectual Property Organization’s (WIPO) 1996 World Copyright Treaty (WCT) and World Performances and Phonograms Treaty (WPPT) at EU level, the legal requirements of the European Union in the form of eight Council directives that had to be transposed into German law prompted the German legislator to reform copyright law. The directives in question are :

  • Council Directive 91/250/EEC of 14.05.1991 on the legal protection of computer programmes (known as the Computer Programme Directive);

  • Council Directive 92/100/EEC of 19.11.1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, in the codified version of 27.12.2006 (known as the Rental Right and Lending Right Directive);

  • Council Directive 93/98/EEC of 27.09.1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (known as the Satellite and Cable Directive);

  • Council Directive 93/98/EEC of 29.10.1993 harmonising the term of protection of copyright and certain related rights, in the codified version of 27.12.2006 (known as the Term of Protection Directive)

  • Council Directive 96/9/EC of 11.03.1996 on the legal protection of databases (known as the Database Directive);

  • Council Directive 2001/29/EC of 22.05.2001 on the harmonisation of certain aspects of copyright and related rights in the information society (known as the Multimedia Directive or the InfoSoc Directive, it serves mainly to implement the WIPO treaties);

  • Council Directive 2004/48/EC of 29.04.2004 on the enforcement of intellectual property rights (known as the Enforcement Directive).

First and Second Basket

Even though these directives have led to harmonisation in the area of the internal market, they have not brought about a uniform European copyright law. This is due to the fact that the member states have room for manoeuvre when transposing them into national law. In Germany, the Act on the Regulation of Copyright in the Information Society, which served mainly to transpose the InfoSoc Directive into German law, was debated under the heading “First Basket”. The First Basket introduced a new exploitation right in Section 19a of the German Copyright Act (UrhG) – namely, the right of making works available to the public. Moreover, it brought about a revision of the system of granting rights of use by performers in Sections 73 ff. UrhG. This now takes place in the same way as the granting of rights of use by authors. Moreover the protection of technological measures to prevent the unauthorised production of copies was incorporated into the UrhG in Sections 95a ff.

The provisions to be included in the Second Basket were the subject of controversial debate from autumn 2003 onwards. Above all, at quite an early stage in the debate calls were made to take the needs and interests of science and research into account. When it was published on 09.09.2004, the first draft bill of the Second Act on the Regulation of Copyright in the Information Society still bore the title “Copyright in the knowledge society: A fair balance between creative professionals, industry, and consumers”. The influence of the lobbyists from the media sector on the draft bill was evident. This gave rise to sometimes vigorous protests from the ranks of science and research.

The University Rectors’ Conference, the German Science Council, the Max Planck Society, and other organisations joined forces to form the Coalition for Action “Copyright for Education and Science”. In the joint Göttingen Declaration of 05.07.2004, they called on the powers that be to ensure that, in a digitised and networked information society, universal “access to global information for the purposes of education and science is guaranteed at all times and from every place”. The Bundesrat took up the issue of open access (OA). In a statement issued in May 2006, it proposed the inclusion in the Second Basket of a statutory provision on OA and other provisions for more education- and science-friendly copyright. Particularly worthy of mention is the call for the creation of a right of secondary publication by incorporating the following provision into Section 38 (1) of the UrhG:

In the case of scholarly contributions that have been produced within the framework of a teaching and research activity that is financed mainly with public funds and that are published in periodicals, the author, even if he has granted an exclusive right of use, has the right to make the contents publicly accessible elsewhere six months at the latest after the first publication provided this is justified for non-commercial purposes and does not take place in the layout of the first publication. This right may not be waived.

The Federal Government rejected this proposal on the grounds that its implementation was prevented by EU law and constitutional reservations. As a result, an amendment of the provision in Section 38 of the UrhG did not take place within the framework of the Second Basket, which came into force on 01.01.2008.

Individual questions relating to the limits on copyright introduced with the Second Basket have since reached the Bundesgerichtshof (Federal Supreme Court) and have undergone supreme court clarification. This is the case, for example, with the right to make works publicly accessible for the purpose of illustration in teaching at schools and higher education institutions in accordance with Section 52 of the UrhG. In its judgment of 28.11.2013 (Az.: I ZR 76/12; retrieved on 28.02.2015), which is known as “Milestones of Psychology”, the First Civil Senate of the Bundesgerichtshof, which is responsible for copyright matters, defined the scope of the limitation in relation to the volume of the material to be provided.

It remains an open question whether users who have access to works at terminals in libraries, archives, and museums in accordance with §52b UrhG have the right to make print copies of these works or digital copies on storage media within the framework of the rights granted to them under Section 53 of the UrhG on the basis of the “private copies limitation”. Following the European Court of Justice judgment of 11.09.2014 (Az.: C-117/13; retrieved on 28.02.2015) in reply to the questions submitted by the Bundesgerichtshof (Federal Supreme Court) in relation to the interpretation of the InfoSoc Directive, the First Civil Senate will address the matter once again on 16.04.2015.

Third Basket

Immediately after the enactment of the Second Basket, a Bundestag Education Committee resolution was published, which was based on an initiative of the education policymakers Carsten Müller (CDU) and Jörg Tauss (SPD). It called for the speedy commencement of work on the Third Basket under the heading “Education and Science Basket”. The Bundesrat endorsed calls to take the interests of education and research into account in copyright law with a view to reforming the copying regulations. In summer 2010, the Federal Justice Ministry started work on this reform project.

In contrast to the other two baskets, reform is not taking place in a large package but rather via a number of individual measures, for example the introduction of an inalienable right of secondary publication in Section 38 (4) of the UrhG. This right of secondary publication has been criticised as too far-reaching by those who wish to exploit the work for commercial purposes and by end-users, and as not far-reaching enough by the science sector. In particular, the fact that the legislator did not clearly delimit the scope of application has contributed to triggering an intense controversy as to whether university research is excluded from the limitation of copyright contract law provisions.

According to the current legal position, the accepted manuscript version of a contribution may not be made publicly accessible for non-commercial purposes within the framework of secondary publication in accordance with Section 38 (4) of the UrhG if it results from research that was financed mainly from a university’s basic funds, even if it appears in a periodical that is published at least twice a year. In any case, the right of secondary publication does not arise in the case of a contribution that has been produced within the framework of purely didactic activities. Hence, the beneficiaries of the provision are researchers working on projects that are funded mainly by third parties such as the German Research Foundation (DFG), the Federal Ministry of Education and Research (BMBF), and foundations or researchers working at research institutions such as the Leibniz Institutes and the Fraunhofer Institutes. The importance for the green road to OA of the limitation on copyright is therefore limited.

A further important change in relation to the handling of orphan works occurred with effect from 01.01.2014. The new provisions in Sections 61 ff. of the UrhG provide that privileged institutions such as libraries, museums, and archives have the possibility of making publicly available online works whose authors can no longer be identified or located. Of particular importance is the possibility of making the work publicly accessible even if the rightholder still exists but it is no longer possible to determine where he can be contacted for the purpose of obtaining the rights. The sources of a diligent search under Section 61 (2) of the UrhG that must be contacted in an effort to locate the rightholder can be found in an attachment to Section 61a of the act.