Purpose transfer theory

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In copyright and publishing law, the doctrine of transfer of purpose denotes a principle of interpretation, according to which, in case of doubt, an author only grants rights of use to the extent that the purpose of the contract absolutely requires. Numerous alternative names for this idea are in use in literature and jurisprudence; common synonyms are about transfer purpose doctrine , transmission purpose thought , purpose transmission theory , purpose transfer rule and purpose carry-over principle .

Germany

Purpose transfer theory by Goldbaum

The doctrine of the transfer of purpose in German copyright law is usually traced back to Wenzel Goldbaum in the literature . In his first edition of the Commentary on Copyright and Copyright Contract Law , which appeared in 1922 , Goldbaum first introduced the term “transfer of purpose”. He uses it to describe the “special character” of the limited transfer of copyrights between two parties who both “pursue the same purpose - the author through the transfer, the recipient through the takeover - and that purpose is the exploitation of the copyright through publication of the work ". Goldbaum saw this earmarking in the context of a power imbalance between exploiter and author. “Only through publication” “the author can get his wages, and today the heavily depressed class of intellectual workers is dependent on this more than ever [...] The intellectual worker, the author, is in no way served by the mere payment [ ...] The idea that the workforce as an object of public use must be withdrawn from private arbitrariness is becoming more and more popular. ”In another publication from 1923, Goldbaum then formulates the“ theory of the transfer of purpose ”, which is the“ utility effect [...] an interpretation rule "applies:

“She said quite simply that the entrepreneur who buys a work acquires as many rights as he needs to fulfill his purposes. So far, no further, does his will to acquire; as far as the author's will to transfer is sufficient: if these wills coincide, a legal transaction has come about; moreover not. "

As an example, Goldbaum refers to the situation of authors whose works were used by a rapidly growing film industry as the basis for new productions. They acquired the necessary rights for this from the publishers, to whom the authors in turn had transferred “all copyright” or “all copyright” for all times and countries according to a common wording of the treaties. Due to these agreements, the case law often allowed them to do their thing. Goldbaum rejected this mere literal interpretation; an interest-based result requires a “standard of interpretation”, as can be found in the transference of purpose theory. In this way, in particular, it can be taken into account whether the authors were able to foresee such a cinematic evaluation at all (to this extent). This thought is sometimes ascribed to other authors before Goldbaum ; Bappert, for example, refers to corresponding statements by Josef Kohler ; In the case law of the Imperial Court, parallels to common law were occasionally drawn.

Goldbaum took "another, no less significant" side from his transference theory. In the absence of an agreement to the contrary, the purpose of the acquisition results in "an obligation". One must "assume that the author, who transfers his rights to an entrepreneur, is not only pursuing the purpose of material remuneration, but the purpose of publication". In cases of doubt, it should therefore be assumed that an author who transfers the filming rights to his work can also invoke a filming obligation on the part of the rights recipient. In contrast to the idea described above, this part of the transfer of purpose theory, which postulated nothing less than the principle of a general obligation to exercise copyright, was not able to assert itself in either case law or teaching, and was also not accepted in legislation. (Instead, the copyright legislator countered this problem with a right of recall in the event of non-exercise, Section 41 of the Copyright Act.)

Development in case law until 1965

Despite isolated contemporary criticism in the literature, the idea of ​​transferring the purpose was essentially taken over from the case law of the Imperial Court and further consolidated there. The principles of the transfer purpose concept already formed the basis of the decisions Das Musikantenmädel (1927) and Wilhelm Busch (1929) of the Reichsgericht (RG). Both cases concerned constellations in which rightholders had declared very generally that they wanted to transfer copyrights in a comprehensive manner; Only later did unforeseen possible uses (filming or broadcasting) open up when the contract was concluded. The Reichsgericht affirmed both times that the respective rights remain with the respective authors. In its decisions, the court did not, like Goldbaum, refer directly to a “purposeful character” of copyright law, but rather took the consideration from general principles of interpretation or - directly or analogously - § 14 of the Law on Copyright in Works of Literature and Music (LUG). In particular, a general principle was taken from the latter that in cases of doubt, in the case of contracts for the sale of copyrights, it should be assumed that the author retains the authority.

The Federal Court of Justice (BGH) followed up on after the war to the rich court jurisdiction. Unlike the Reichsgericht, the BGH also explicitly referred to Goldbaum 's teaching in its case law . In its decision Lied der Wildbahn I (1953), the BGH referred to the "doctrine of the transfer of purpose recognized in copyright law, according to which the scope of the transferred copyright powers is determined by the purpose that the contract strives for." in the event of a dispute, the restrictive interpretation of a film exploitation contract; because exclusive power to perform was already transferred, the BGH denied a transfer of the copyright to the individual images, as this was not required to fulfill the purpose of the contract. The BGH also extended the scope of the transfer of purpose concept to a certain extent. In Lied der Wildbahn I he also applied it to copyright transfers of further stages in which the author was no longer involved and in the decision by Cosima Wagner (1954) he assessed not only the question of the scope of a transfer, but also the question of whether a transfer has taken place at all, with the help of the doctrine of transfer of purpose. The 1957 Bel Ami decision reaffirmed the universal character of the principle of interpretation; In contrast to the vast majority of previous issues, it was not about ways of using which only emerged as a result of technical or economic developments and were characterized by a certain “novelty”, but rather the use of film music in another film. Here, too, the BGH focused on the transmission purpose, which only allowed it to recognize exploitation rights for certain films in the event of a dispute.

GDR

The copyright law of the GDR (DDR-URG), which came into force in 1966, did not contain any express regulation of the transfer purpose. It is often assumed, however, that a corresponding principle of interpretation also existed under the GDR-URG.

Current legal situation

The concept of the “ doctrine of transfer of purpose ” stands in a certain discrepancy to the current legal situation, since since the Copyright Act (UrhG) came into force in 1966 - unlike under the LUG and KUG - a (translative) transfer of copyright is no longer possible; instead, usage rights are granted. However, the principle can also be applied conceptually to it. It has been codified in Section 31 (5) UrhG since the original version of the Copyright Act , which in its current version (as of March 2017) reads:

"If the types of use are not expressly specified individually when a right of use is granted, the type of use to which it extends is determined by the contractual purpose on which both partners are based. The same applies to the question of whether a right of use is granted, whether it is a simple or exclusive right of use, how far the right of use and prohibition right extend and what restrictions the right of use is subject to. "

The function of Section 31 (5) UrhG is not assessed uniformly in the literature. For example, some of the commentators see it as a mere rule of interpretation, while others see it as a multifunctional provision that goes beyond this: The provision creates a "burden of specification" for the licensee - whoever wants to ensure that he acquires the right of use in question must expressly designate it - and act as factual “formal requirement” - the party who does not explicitly state the types of use has the legal consequence of the restricted interpretation.

Regardless of their exact dogmatic classification, Section 31 (5) UrhG does not provide blanket protection against disadvantageous agreements on the granting of usage rights. ( Section 32 (1) UrhG, on the other hand, protects against agreements that do not adequately involve the author in the fruits of his work, which demands “reasonable remuneration”.) If the rights granted are sufficiently expressly described, the types of use are not additionally identified limited by the concept of transference. Such an express designation does not require a written form. Ohly states in contractual practice a resulting "casuistic" of the inclusion of comprehensive catalogs of rights to be granted "which is unfamiliar for continental European law". The scope of application of Section 31 (5) UrhG tends to be broad. According to the case law of the Federal Court of Justice, it also relates in particular to contracts on related property rights and the granting and transfer of rights by the owners of rights of use at further levels ( grandchildren's rights ). The transfer of purpose concept applies - in line with the case law on the LUG since Cosima Wagner - also to the "whether" of the granting of rights. In cases of doubt, according to Section 31 (5) UrhG, it is also determined whether an exclusive or a simple right of use has been granted.

The problem underlying the early decisions of the Reichsgericht, namely that blanket rights were transferred that the recipient later took as a basis for using the work in more or less new ways - which the author could not foresee at the time of transfer - was also under the Copyright Act Countered in a different way: Until 2007, Section 31 (4) old version declared the granting of rights of use for as yet unknown types of use to be generally ineffective; Since January 1, 2008, contracts for unknown types of use are at least subject to the requirement of the written form ( § 31a ).

Switzerland

The Swiss Copyright Act (URG) does not contain any provision comparable to Section 31 (5 ) of the German Copyright Act . However, the transfer purpose concept has long been recognized in the literature as a principle of interpretation. The representatives sometimes rely on Art. 16 (2) URG, according to which the transfer of a right contained in copyright law “only includes the transfer of other partial rights if this has been agreed”; in case of doubt, the non-transfer can be assumed. In this, the idea of ​​transferring a purpose finds only a partial legal exposition. In addition, it is also recognized for determining the nature of the legal transaction (copyright transfer or license) and the duration of the transfer of rights. In case of doubt, the purpose of the transfer is also used in the literature for further transfers. It should be borne in mind, however, that the theory only comes into play when it is actually unclear which partial rights should be the subject of the transfer - it is therefore not a general principle for the protection of copyright interests that overcomes the actual will of the contracting parties, but an interpretation rule for assessing Cases of doubt.

literature

  • Maite Dörfelt: On the future of the doctrine of transfer of purpose: After the copyright reforms of 2002 and 2008 . Bucerius Law School Press, Hamburg 2017, ISBN 978-3-86381-099-3 .
  • Gunter Fette: The doctrine of transfer of purpose - still and always up to date -: A consideration on the occasion of the exploitation of DEFA's film stock on video and in the new media . In: Christian Schertz, Harmann-Josef Omsels (Hrsg.): Festschrift for Paul Hertin on his 60th birthday on November 15, 2000 . Beck, Munich 2000, ISBN 978-3-406-46903-9 , pp. 53-67 .
  • Barbara Genthe: The scope of the transfer of purpose theory in copyright law (=  European university publications. Series 2, jurisprudence . No. 264 ). Lang, Frankfurt am Main 1981, ISBN 3-8204-6889-7 .
  • Peter Holeschofsky: The doctrine of the transfer of purpose in Austrian copyright law. Thoughts on their nature and their design in a future copyright contract law . In: Robert Dittrich (ed.): Copyright contract law. Status - Development: Conference of the Working Group on Copyright 22./23. April 1985 (=  Austrian series of publications on commercial legal protection, copyright and media law . No. 2 ). Manz, Vienna 1986, ISBN 3-214-07701-5 , pp. 58-91 .
  • Ehrhard E. Liebrecht: The Doctrine of Transfer of Purpose in Foreign Copyright Law (=  Copyright Treaties of the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law, Munich . No. 19 ). Beck, Munich 1983, ISBN 3-406-09019-2 .
  • Gernot Schulze: The Doctrine of Purpose of Transfer - Interpretation Rule and Content Standard? At the same time discussion on BGH, ruling v. May 31, 2012 - I ZR 73/10 - Fee conditions for freelance journalists . In: Commercial legal protection and copyright . tape 114 , no. 10 , 2012, p. 993-996 .
  • Stefan Schweyer: The transfer of purpose theory in copyright law (=  copyright treatises of the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law, Munich . No. 18 ). Beck, Munich 1982, ISBN 3-406-09018-4 .

Remarks

  1. ↑ On the term see for example Scholz in Mestmäcker / Schulze, Copyright , 55th AL 2011, § 31 Rn. 103 ff .; Schulze in Dreier / Schulze, Copyright Act , 6th edition. 2018, Section 31 marginal no. 103 ff .; Ulmer, Copyright and Publishing Law , 3rd edition 1980, p. 364; BGH, ruling v. September 27, 1995, I ZR 215/93 = GRUR 1996, 121, 122 - lump-sum granting of rights .
  2. ↑ Used for example by Schulze in Dreier / Schulze, Copyright Act , 6th edition 2018, § 31 marginal no. 110; BGH, ruling v. May 21, 2015, I ZR 62/14 = GRUR 2016, 62 - GVR daily newspapers I , Rn. 54, 61.
  3. ↑ In particular, the BGH has also repeated in recent case law, cf. Schulze in Dreier / Schulze, Copyright Act , 6th edition. 2018, Section 31 marginal no. 110; BGH, ruling v. April 11, 2013, I ZR 152/11 = GRUR 2013, 618 - Internet video recorder II , Rn. 30 f .; also in Schack, Copyright and Copyright Contract Law , 8th edition 2017, Rn. 614 ff.
  4. ↑ von Gamm, Copyright Law , 1968, § 31 Rn. 19; BGH, ruling v. March 20, 1986, I ZR 179/83 = GRUR 1986, 885, 886 f. - METAXA .
  5. ^ Ohly in Schricker / Loewenheim, copyright , 5th edition 2017, § 31 marginal no. 55; Schulze in Dreier / Schulze, Copyright Act , 6th edition. 2018, Section 31 marginal no. 120; BGH, ruling v. December 14, 2006, I ZR 34/04 = GRUR 2007, 693, 695 - archive photos .
  6. ↑ Haberstumpf in Büscher / Dittmer / Schiwy, industrial property rights, copyright, media law , 3rd edition 2015, § 31 marginal no. 15 ff.
  7. ↑ Schack, Copyright and Copyright Contract Law , 8th edition 2017, Rn. 615; Genthe, The Extent of the Transfer of Purpose Theory in Copyright , 1981, op. Cit., P. 5; Schweyer, The Transfer of Purpose Theory in Copyright , 1982, op.cit., P. 1.
  8. ↑ Genthe, The Extent of the Transfer of Purpose Theory in Copyright , 1981, op.cit., P. 5.
  9. ^ Wenzel Goldbaum, Copyright and Copyright Contract Law , 2nd edition, Georg Stilke, Berlin 1927, p. 75.
  10. ^ Wenzel Goldbaum, Copyright and Copyright Contract Law , 2nd edition, Georg Stilke, Berlin 1927, p. 75 f.
  11. ↑ Wenzel Goldbaum, News from Theory and Practice of Copyright Law , in: Commercial legal protection and copyright , Vol. 28, No. 8/9, 1923, pp. 182–187, here p. 183.
  12. ↑ Wenzel Goldbaum, News from Theory and Practice of Copyright Law , in: Commercial legal protection and copyright , Vol. 28, No. 8/9, 1923, pp. 182–187, here p. 182.
  13. ^ Walter Bappert, Ways to Copyright: The Historical Development of Copyright Thought , Klostermann, Frankfurt am Main 1962, p. 296 f.
  14. ↑ Genthe, The Extent of the Transfer of Purpose Theory in Copyright , 1981, op. Cit., Pp. Ff.
  15. ↑ Wenzel Goldbaum, News from Theory and Practice of Copyright Law , in: Commercial legal protection and copyright , Vol. 28, No. 8/9, 1923, pp. 182–187, here p. 183.
  16. ↑ Wenzel Goldbaum, News from Theory and Practice of Copyright Law , in: Commercial legal protection and copyright , Vol. 28, No. 8/9, 1923, pp. 182–187, here pp. 183 f.
  17. ↑ Schweyer, The transfer of purpose theory in copyright law , 1982, op. Cit., P. 4 f.
  18. ↑ Näher Schweyer, The transfer of purpose theory in copyright law , 1982, op.cit., P. 12 ff.
  19. ↑ To this in detail Genthe, The scope of the transfer of purpose theory in copyright law , 1981, op. Cit., P. 9 ff .; Schweyer, The Transfer of Purpose Theory in Copyright , 1982, op.cit., Pp. 18 ff.
  20. ↑ RG, judgment of October 29, 1927, I 76/27 = RGZ 118, 282 or RG, judgment of February 16, 1929, I 320/28 = RGZ 123, 312.
  21. ↑ See also the detailed case studies in Schweyer, Die Zweckführungstheorie im Copyright , 1982, op.cit., Pp. 20 ff., 22 ff.
  22. ↑ Schweyer, The Transfer of Purpose Theory in Copyright , 1982, op.cit., P. 65.
  23. ↑ Schweyer, The transfer of purpose theory in copyright law , 1982, op. Cit., P. 66. So first of all obiter in RG, judgment of v. October 29, 1927, I 76/27 = RGZ 118, 282, 285 - Das Musikantenmädel ; RG, ruling v. February 16, 1929, I 320/28 = RGZ 123, 312, 319; bearing then about in RG, Urt. November 14, 1931, I 9/31 = RGZ 134, 198, 200 f.
  24. ↑ Schweyer, The Transfer of Purpose Theory in Copyright , 1982, op.cit., P. 66.
  25. ↑ BGH, ruling v. April 21, 1953, I ZR 110/52 = GRUR 1953, 299, 301 - Lied der Wildbahn I (insofar not printed in BGHZ 9, 262).
  26. ↑ On this, Schweyer, The transfer of purposes theory in copyright law , 1982, op. Cit., P. 34 f.
  27. ↑ BGH, ruling v. November 26, 1954, I ZR 266/52 = BGHZ 15, 249, 255 ff. = GRUR 1955, 201, 203. On this, Schweyer, The transference theory in copyright law , 1982, op.cit., P. 36.
  28. ↑ BGH, ruling v. June 14, 1957, I ZR 143/55 = GRUR 1957, 611. On this, Schweyer, Die Zweckführungstheorie im Copyright , 1982, op.
  29. ↑ Liebrecht, The transfer of purpose in foreign copyright law , 1983, op. Cit., P. 85; Thomas Stögmüller, German Unification and Copyright , Nomos, Baden-Baden 1994, ISBN 3-7890-3380-4 , p. 124; Artur-Axel Wandtke, Effects of the Unification Treaty in the New Federal States , in: Commercial Legal Protection and Copyright , Vol. 93, No. 4, 1991, pp. 263–267, here p. 266.
  30. ↑ In this sense JB Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, § 31 Rn. 115; Schricker / Loewenheim in dies., Copyright , 4th edition 2010, § 31 Rn. 66; Artur-Axel Wandtke, Effects of the Unification Treaty in the New Federal States , in: Commercial Legal Protection and Copyright , Vol. 93, No. 4, 1991, pp. 263–267, here p. 266; differentiating Liebrecht, The Doctrine of Transfer of Purpose in Foreign Copyright Law , 1983, op. cit., pp. 85 ff., 103 f. But see critical Christine Reupert, Legal Consequences of German Unity for Film Copyright. Who are entitled to the rights to the GDR films? , in: Journal for Copyright and Media Law , Vol. 38, No. 2, 1994, pp. 87–98, here p. 96.
  31. ↑ Also referring to this, JB Nordemann in Fromm / Nordemann, Copyright , 12th ed. 2018, § 31 Rn. 112a; Schack, Copyright and Copyright Contract Law , 8th edition 2017, Rn. 615.
  32. ^ So Berger in Berger / Wündisch, copyright contract law , 2nd edition 2015, § 1 marginal no. 93 ff .; Schack, Copyright and Copyright Contract Law , 8th edition 2017, Rn. 615.
  33. ↑ Scholz in Mestmäcker / Schulze, Copyright , 55th AL 2011, § 31 Rn. 111 ff .; Ohly in Schricker / Loewenheim, copyright , 5th edition 2017, § 31 marginal no. 56; Schulze in Dreier / Schulze, Copyright Act , 6th edition. 2018, Section 31 marginal no. 111.
  34. ^ Ohly in Schricker / Loewenheim, copyright , 5th edition 2017, § 31 marginal no. 56; Schulze in Dreier / Schulze, Copyright Act , 6th edition. 2018, Section 31 marginal no. 112.
  35. ^ Also referring to this, Berger in Berger / Wündisch, copyright contract law , 2nd edition 2015, § 1 marginal no. 95.
  36. ↑ Kotthoff in Dreyer / Kotthoff / Meckel, Copyright , 3rd edition 2013, § 31 Rn. 134; JB Nordemann in Fromm / Nordemann, copyright , 12th edition. 2018, § 31 marginal no. 109; Schack, Copyright and Copyright Contract Law , 8th edition 2017, Rn. 615; BGH, ruling v. September 22, 1983, I ZR 40/81 = GRUR 1984, 119, 121 - dubbing speaker .
  37. ^ Ohly in Schricker / Loewenheim, copyright , 5th edition 2017, § 31 marginal no. 70; Schulze in Dreier / Schulze, Copyright Act , 6th edition. 2018, Section 31 marginal no. 112.
  38. ^ Ohly in Schricker / Loewenheim, copyright , 5th edition 2017, § 31 marginal no. 57.
  39. ↑ BGH, ruling v. September 22, 1983, I ZR 40/81 = GRUR 1984, 119, 121 - dubbing speaker ; BGH, ruling v. April 11, 2013, I ZR 152/11 = GRUR 2013, 618 - Internet video recorder II , Rn. 30th
  40. ↑ Schulze in Dreier / Schulze, Copyright Act , 6th edition 2018, § 31 marginal no. 118.
  41. ^ Wandtke / Grunert in Wandtke / Bullinger, copyright , 4th edition 2014, § 31 marginal no. 45; for example BGH, ruling v. November 28, 1985, I ZR 104/83 = GRUR 1986, 458, 459 - Oberammergau Passion Play .
  42. ^ Wandtke / Grunert in Wandtke / Bullinger, copyright , 4th edition 2014, § 31 marginal no. 59; Schulze in Dreier / Schulze, Copyright Act , 6th edition. 2018, Section 31 marginal no. 118; for example OLG Düsseldorf, ruling. March 22, 1988, 20 U 166/87 = GRUR 1988, 541, 541 - product catalog photos .
  43. ↑ Barrelet / Egloff, The new copyright , 3rd edition 2008, Art. 16 para. 20; de Werra in Müller / Oertli, Copyright Act , 2nd edition 2012, Art. 16 marginal no. 39; Rehbinder / Viganò, URG , 3rd edition 2008, Art. 16 para. 14; Rauber in Streuli-Youssef, Copyright Contract Law , 2006, p. 196.
  44. ^ Rauber in Streuli-Youssef, Copyright Contract Law , 2006, p. 196 f.
  45. ↑ de Werra in Müller / Oertli, Copyright Act , 2nd edition 2012, Art. 16 Rn. 47 f .; Streuli-Youssef in dies., Copyright Contract Law , 2006, p. 10 (see also p. 13: Transfer of purpose theory in Art. 16 URG "only hinted at []").
  46. ↑ Barrelet / Egloff, The new copyright , 3rd edition 2008, Art. 16 para. 22; de Werra in Müller / Oertli, Copyright Act , 2nd edition 2012, Art. 16 marginal no. 41.
  47. ↑ Barrelet / Egloff, The new copyright , 3rd edition 2008, Art. 16 para. 22b.
  48. ↑ Barrelet / Egloff, The new copyright , 3rd edition 2008, Art. 16 para. 21; de Werra in Müller / Oertli, Copyright Act , 2nd edition 2012, Art. 16 marginal no. 40; Rehbinder / Viganò, URG , 3rd edition 2008, Art. 16 para. 14; Rauber in Streuli-Youssef, Copyright Contract Law , 2006, p. 196 f .; Streuli-Youssef in dies., Copyright Contract Law , 2006, p. 11; von Büren / Meer in von Büren / David, Copyright and Related Rights , 3rd Edition 2014, Rn. 480, 483.