Anonymous work (copyright)

from Wikipedia, the free encyclopedia

In copyright law, an anonymous work is a work without an author's name, i.e. a work that is not identified by name.

Since one does not know or should not know the author of anonymous works, regulations that decide on the duration of copyright protection are usually not linked to the date of death of the author, but to the time of first publication .

The purpose of these standards, which in Germany go back to the year 1870, is in itself to provide the user with legal certainty . Nevertheless, there is a great deal of legal uncertainty for potential users of anonymous works.

Anonymous works are not to be confused with orphan works .

Legal situation in Germany

The Europe-wide standard protection period states that a work is protected by copyright for up to 70 years after the death of the author ( § 64 UrhG ).

The desire of an author to remain anonymous is expressly respected in Germany and other legal systems.

In the case of an anonymous work, however, the copyright expires seventy years after publication (in accordance with Section 66 UrhG). If the work has not yet been published 70 years after its creation, the protection period expires 70 years after its creation. The protection period for anonymous works is often shorter than the standard protection period, but a longer protection period can also result.

If the author acknowledges his work within seventy years of publication, the standard protection period of 70 years after his death applies. After his death, such a disclosure may also be made by his legal successor (heir) or the executor .

Example: In the year 2000 a woman writes down her memoirs. After her death in 2004, these appear anonymously in 2010. Shortly afterwards, a literary scholar succeeds in identifying the author (for a real case see, for example, A woman in Berlin ). He publishes his discovery, but the daughter of the presumed author as sole heir does not issue a statement. The protection period runs 70 years after publication, as there is no authorized disclosure by the person entitled, i.e. until 2080. The work is thus protected six years longer than the standard protection period (70 years after the author's death).

For many anonymous works created before July 1, 1995, the earlier legal situation is still relevant (see below).

Representation of the anonymous author

In the case of published works without an author's designation , Section 10 (2) UrhG applies : It can then be assumed that the publisher named on the copies or - if there is no such named publisher - is authorized to assert the rights of the author. In this way, the author should be able to remain anonymous .

Code name or artist's mark

If there is a designation that is known as an alias or artist's mark of the author, according to Section 10 UrhG, until proven otherwise, it must be assumed that the person who bears this alias or the artist’s mark is the author. There are no high demands to be made on the awareness of aliases and artist's marks. If there is a known alias or a well-known artist's mark, then according to § 66 UrhG the standard protection period according to § 64 and § 65 UrhG applies , since the pseudonym assumed by the author leaves no doubt about his identity . So there is no anonymous work.

Examples of well-known aliases in the text area are the initials of journalists in newspaper publications . Initials , logos and graphic symbols can be used as artist's marks. The gold and silversmiths 'stamps are also artists ' marks .

With regard to the question of the point in time to which the recognition of the alias or artist's mark relates, the point in time when the work was created must be assumed. Even decades later, the son of a journalist can report that his father wrote under a certain code in the X-Zeitung. If it can be made credible that the abbreviation has some conclusive connection with the name of the journalist and that the journalist actually wrote for the X-Zeitung, a judge will consider the son to be authorized in accordance with the legal presumption of § 10 UrhG who To exercise his father's copyrights if he is not 70 years old.

Former legal situation in Germany / transitional law

Due to the so-called transitional law, the previous legal situation still applies to works that were created before the change in copyright law of July 1, 1995 came into force. The old legal situation applies if the application of the new regulations would shorten the term of protection. This must be taken into account in a very large number of cases.

The old version of § 66 UrhG old version read:

Section 66 Anonymous and pseudonymous works
(1) If the real name or the known alias of the author has not been given in accordance with Section 10 (1) or in a public reproduction of the work, the copyright shall expire seventy years after the publication of the work.
(2) The duration of the copyright is also calculated in the case of paragraph 1 according to Sections 64 and 65,
1. if within the period specified in paragraph 1 the real name or the known alias of the author according to § 10 paragraph 1 is given or the author becomes known as the creator of the work in another way,
2. if the real name of the author is registered for entry in the author's role (§ 138) within the period specified in paragraph 1 ,
3. if the work is only published after the death of the author.
(3) The author, after his death his legal successor (Section 30) or the executor (Section 28, Section 2) are entitled to register in accordance with Paragraph 2 No. 2.
(4) The above provisions do not apply to works of the visual arts .

This version shows significant differences to the new law in some points, which are explained with the following examples.

Examples:

1. An election campaign poster from 1933, unmarked by name, was created by an artist who died in 1950. According to the new law, it would be in the public domain in 2004, i.e. 70 years after publication, unless the author or his legal successor disclosed it. While photographs are not considered works of fine art in the sense of Section 66 (4) UrhG old version, the election campaign poster is a work of fine art, namely applied art . Due to paragraph 4, the protection period under the old law does not expire until 2020, 70 years after the artist's death. Since the application of the new law would mean a shortening of the protection period, the old law is to be applied and the poster is still protected until 2020. It is legally irrelevant with this invoice that a potential user does not even know when the author died, since the poster is anonymous. Since it is not completely unthinkable that a 13-year-old created the poster in 1933, who could well and happily live 100 years, i.e. until 2020, a user would theoretically have to reckon up to 70 years after the death of this author, i.e. 2090, that a lawyer contacted him on behalf of the heirs of the early artist about copyright infringement.

2. A researcher finds an unpublished memorandum from 1933, unpublished by name , in an archive . As § 66 UrhG old version did not apply to unpublished works, the - usually longer - standard protection period of 70 years after the death of the author is to be applied. Here, too, it does not matter that a potential user almost never has a chance to determine the originator and thus the year of his death.

Registration in the copyright role

A register of anonymous and pseudonymous works is kept at the patent office ( § 138 UrhG), in which the author can register anonymous or pseudonymous works in order to guarantee them the standard protection period of 70 years after the death of the author. The practical significance of the register is small: on December 31, 2001 only 645 works by 346 authors were registered. The possibility of bringing about a comparatively favorable decision on the protectability of works via the conclusiveness check of the patent office and the subsequent possibility of contestation at the Munich Higher Regional Court (exceptionally without legal requirements ) was apparently hardly used. The patent office refuses to register if the work has not been published or is obviously not worthy of protection.

Legal situation in Austria, Switzerland and the European Union

Section 61 of the Austrian law provides: The copyright on works whose author ( Section 10 (1)) has not been designated in a way that under Section 12 justifies the presumption of authorship ends seventy years after their creation. However, if the work is published before this period expires, the copyright will expire seventy years after publication .
In essence, this corresponds to the German regulation.

In Switzerland, the author of a work is someone who is named on copies of the work by name, pseudonym or identifier. If it remains unknown who is behind a pseudonym or identifier, the copyright can be exercised by the person who publishes the work. If this person is not named either, whoever publishes the work can exercise the copyright.

If it remains unknown who created a work, the protection expires 70 years after publication or, if the work was published in deliveries, 70 years after the last delivery (see Art. 8 and Art. 31 CopA ).

The corresponding provision (Art. 1 (3)) of Council Directive 93/98 / EEC of 29 October 1993 on the harmonization of the term of protection of copyright and certain related rights reads: “For anonymous and pseudonymous works, the term of protection ends seventy years after the work has been legally made available to the public. However, if the pseudonym adopted by the author leaves no doubt about the identity of the author or if the author reveals his identity within the period specified in sentence 1, the term of protection is based on paragraph 1. "

literature

  • Thomas Dreier, Gernot Schulze: Copyright Law. CH Beck, Munich 2004, ISBN 3406512607 .

Web links

Individual evidence

  1. ↑ Schulze, in: Dreier / Schulze, Copyright Law, Munich 2004, § 10 Rn. 9.
  2. ↑ Copyright Act. First version of the UrhG. Seventh Section: Duration of Copyright . Institute for Copyright and Media Law V. Accessed January 22, 2019.
  3. ↑ Dreier / Schulze, UrhG 2nd edition, § 138 Rn. 3.
  4. ↑ cf. Knefel, GRUR 1968, p. 352 ff.
  5. ↑ Directive 93/98 / EEC
This version was added to the list of articles worth reading on August 16, 2005 .