Acknowledgment of authorship

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Plaque with the author's name on a sculpture

The recognition of authorship or the right to be named is one of the central moral rights of the German Copyright Act (UrhG) , alongside the prohibition of distortion . It is codified in § 13 UrhG.

history

Occasionally the previous provisions of the Copyright Act already contained regulations on the recognition of authorship. Section 13 of the Art Copyright Act (KUG), which came into force in 1907, granted the author the right to affix an author's name, such as the name or the artist's name, to art objects. However, § 13 KUG is essentially incorporated into the second sentence of today's § 13 UrhG. The first sentence, however, aligns German law with Art. 6bis of the Bern Convention . The recognition of authorship has been codified in Section 13 since the Copyright Act came into force :

“The author has the right to have his authorship recognized in the work. He can determine whether the work is to be provided with an author's designation and which designation is to be used. "

General

The recognition of the authorship guarantees the interest of the author - insofar as he wants this himself - that the ideal connection between him and the work on which the copyright is based appears to the outside world and that his authorship cannot be challenged. Therefore, only the author (or the co-author, editor or editor of a collective work) has a right to recognition of authorship. However, the right is also granted to the authors of scientific editions according to § 70 and photographers according to § 72 . Consequently, neither legal persons nor right-of-use holders have a copyright-based right to be named. The right to recognition of authorship expires with the transition of the work to the public domain .

The recognition of authorship can be divided into the right of recognition, the right to designate and the prohibition of naming.

Recognition right

The right of recognition according to § 13 sentence 1 UrhG is a general protection principle. In particular, the author has the right to invoke his authorship, to ward off the denial of his authorship and to counter the unjustified copyright claims of a third party on his work. The attack on the authorship can take place, for example, by withdrawing the authorship or by presuming the authorship in the case of plagiarism. The authorship is withdrawn even if only the editor of a work is named as the sole author . The author can defend himself against an attack on the authorship through § 97 UrhG in conjunction with § 13 UrhG.

Right of determination

The right to determine the author's designation according to § 13 sentence 2 UrhG includes the right of the author to determine whether his work is to be provided with an author's designation and which designation is to be used. The right to designate is therefore of greater practical importance than the right to recognition as a general property right. The real name, the artist name or the artist's mark can be used as a designation. The address or job title of the author is no longer covered by this right. The designation must be attached to the work in such a way that the presumption of copyright according to § 10 UrhG unfolds its effect on the designated author. Choosing the author's name according to traffic habits or industry practice is unsuitable for the copyright determination right. The author can tacitly submit to the industry practice when concluding the contract. However, this industry practice as well as the author's knowledge about it requires a precise examination so that it does not lead to an immoral disadvantage of the author. In case of doubt, however, the transfer of purpose theory must be decided in favor of the author.

Entry ban

The prohibition of naming is the negative right of the author to prohibit an author from being named afterwards, and it allows the author to distance himself from the work in addition to the pseudonymous and anonymous authorship. This means that the author can refuse to sign an unsigned work afterwards. However, he cannot prevent the exposure of the author's authorship outside of the exploitation of the work, for example in articles or comments.

However, no droit de non-paternité can be derived from §13 UrhG . An artist who finds out that a work by someone else's has been added to a directory of his works cannot refer to §13 UrhG. However, he has general personal rights and, under certain circumstances, the right to a name .

Individual cases

Employee creator

Restrictions may arise in the case of authors in employment and service relationships (employee authors). Restrictions according to the type and purpose of the work can result from the fact that the author does not have to be named, for example in the case of an official who writes an official information document intended for publication. However, the moral right does not completely apply to employee originators. Thus, among other things, the presumption of the authorship of the employer, as is often the case at universities, where employed academic staff are forced to name the chair holder, can be defended.

Ghostwriter

Even with ghostwriters , the recognition of the ghostwriter's authorship should be restricted. However, here too the recognition of the entire duration of the copyright can not be waived. For example, a contractually agreed restriction lasting more than five years can be terminated by the ghostwriter (according to Section 40 Paragraph 1 Sentence 2, Section 41 Paragraph 4 Sentence 2 UrhG). Neither ghostwriters nor clients can defend themselves against a publication of the actual authorship. The ghostwriter is also free to truthfully name his own authorship upon direct request; he can only contractually undertake not to disclose his authorship without being asked.

Individual evidence

  1. ↑ cf. BGH, judgment of June 16, 1994, Az .: I ZR 3/92
  2. ↑ a b Fromm / Nordemann / Hertin , Copyright, 9th edition 1998, § 13 marginal no. 1
  3. ↑ a b Office. Justification of the draft law on copyright and related rights, point B, part 1, section 4, on § 13 - recognition of authorship
  4. ↑ Loewenheim / Dietz , Handbook of Copyright, 1st edition 2003, § 16 marginal no. 66
  5. ↑ a b Schricker / Loewenheim / Dietz / Peukert, Copyright, 3rd Edition, § 13 No. 1
  6. ↑ Dreier / Schulze, Copyright Act, 3rd edition, § 13 marginal no. 9
  7. ↑ a b Loewenheim / Dietz , Handbook of Copyright, 1st edition 2003, § 16 marginal no. 67
  8. ↑ a b Fromm / Nordemann / Hertin , Copyright, 9th edition 1998, § 13 marginal no. 3
  9. ↑ Dreier / Schulze, Copyright Act, 3rd edition, § 13 marginal no. 10
  10. ↑ a b c d e f Loewenheim / Dietz , Handbook of Copyright, 1st edition 2003, § 16 marginal no. 68-71
  11. ↑ a b Fromm / Nordemann / Hertin , Copyright, 9th edition 1998, § 13 marginal no. 4th
  12. ↑ BGH GRUR 2002, 799, 801 - light rail vehicle
  13. ↑ a b c Fromm / Nordemann / Hertin , Copyright, 9th edition 1998, § 13 marginal no. 5
  14. ↑ a b Loewenheim / Dietz , Handbook of Copyright, 1st edition 2003, § 16 marginal no. 72
  15. ↑ Schricker / Loewenheim / Dietz / Peukert, Copyright, 3rd edition, § 13 marginal no. 7th
  16. ↑ Loewenheim / Dietz , Handbook of Copyright, 1st edition 2003, § 16 marginal no. 74
  17. ↑ Loewenheim / Dietz , Handbook of Copyright, 1st edition 2003, § 16 marginal no. 77
  18. ↑ a b Fromm / Nordemann / Hertin , Copyright, 9th edition 1998, § 13 marginal no. 9
  19. ↑ a b Fromm / Nordemann / Hertin , Copyright, 9th edition 1998, § 13 marginal no. 14th
  20. ↑ a b Fromm / Nordemann / Dustmann , Copyright, 10th edition, § 13 marginal no. 11
  21. ↑ a b c Loewenheim / Dietz , Handbook of Copyright, 1st edition 2003, § 16 marginal no. 79
  22. ↑ a b Fromm / Nordemann / Hertin , Copyright, 9th edition 1998, § 13 marginal no. 10
  23. ↑ Loewenheim / Dietz , Handbook of Copyright, 1st edition 2003, § 16 Rn. 80.
  24. ↑ a b Fromm / Nordemann / Hertin , Copyright, 9th edition 1998, § 13 Rn. 16
  25. ↑ Loewenheim / Dietz , Handbook of Copyright, 1st edition 2003, § 16 Rn. 81
  26. ↑ OLG Frankfurt, judgment of September 1, 2009 , Az. 11 U 51/08, full text.
  27. ↑ Dreyer / Kotthoff / Meckel / Dreyer, hand commentary on copyright, 2nd edition, § 13 marginal no. 40 f. ( limited preview in Google Book search)