Editing (copyright)
The processing is a term of the German and Austrian copyright . A processing is a modification of a work that has the necessary height of creation to acc. § 3 dUrhG or § 5 Abs. 1 ÖUrhG itself as a work to be protected by copyright. Editing of a work is generally permitted without the consent of the author, in Germany with a few exceptions (cf. § 23 S. 2 dUrhG). For the publication and utilization of the processing, the consent of the author of the processed work is always required in accordance with § 23 sentence 1 dUrhG or § 14 para. 2 öUrhG.
The parallel term in Swiss copyright law is the second-hand work , cf. Art. 3 CopA .
Regulation in German copyright law
Processing as subject of copyright protection
Based on the influential revised Bern Convention of 1908, German copyright law protects works of literature, science and art ( § 1 UrhG ). For its part, the term “ work” only includes personal intellectual creations ( Section 2 (2) UrhG).
In fact, an existing work can also be the template for a modification, which in turn appears to be an intellectual creation and should therefore be accessible to copyright protection.
The provision of § 3 UrhG takes this into account by stipulating that such adaptations are protected as independent works (§ 3 sentence 1 UrhG).
Prerequisite for processing
The preconditions for processing can already be derived from the above-described function of protecting the processing: First of all, processing requires a work that is being processed. This apparent self-evident gain in importance when one realizes that a work only falls under the protection of copyright under certain conditions, which in particular include a sufficient level of creativity . If the original product is not a work that can be protected, its change does not constitute processing: the structure created by the modification is either itself a work within the meaning of § 2 UrhG, or it is of no significance in terms of copyright.
The fact that the original work has to be protectable does not mean that this possible copyright protection actually has to be given. The decisive factor is the quality of the work as its nature is subject to copyright, not its legal status. Editing of a work in the public domain therefore also falls under the term editing.
The further requirement, standardized in § 3 sentence 1 UrhG, for processing to be protected by copyright is that it is also presented as the intellectual creation of the processor. Just like the original work, its modification must also contain a sufficient degree of independence. A more detailed elaboration of this requirement is the regulation of § 3 sentence 2 UrhG, which clarifies that the only insignificant adaptation of an unprotected work of music cannot be protected as an independent work .
Delimitation and examples
Not every creative activity that uses a template is an edit. Rather , the term must be distinguished from redesign , co-authorship or so-called free use .
- In the case of co- authorship, it is obviously not about the author editing the work of another author, but rather the case that several people jointly create an (original) work.
- In contrast, redesigns would be satirical or parodic taking up of a subject or writing a sequel. In these cases, the result of the redesign is easily presented as a separate work, so that there is no need to refer to the term editing.
- The free use within the meaning of § 24 UrhG in turn means a reworking of the material that is so advanced that the original work still serves as the basis, but is only partially recognizable in the new work. In this case, too, the result of free use can be assessed as an independent work under copyright terms without recourse to the regulations on editing.
In contrast, the text of the law itself cites a classic example of editing: Since § 3 sentence 1 UrhG expressly speaks of translations and other revisions , it becomes clear that translations are in any case revisions of the original. Further examples would be the dramatization (preparation as a stage work ) or filming of a text.
Legal consequences
According to § 3 UrhG, adaptations are protected as independent works . This means that the editor enjoys full copyright protection for his editing service. However, he does not acquire any rights to the edited original work, so he can only take action against illegal use of his editing. The author's copyright arises with the editing itself. It is independent of the consent of the author of the edited work and remains protected for 70 years after the editor's death ( § 64 UrhG), regardless of whether the copyright on the edited work expires earlier.
Right to edit
The legal opinion on which the regulation of § 3 UrhG is based, that the editor of a work should also experience the protection of copyright, does not change the fact that the editing of a work as such encroaches on the copyright of its creator, e.g. B. its reputation can be diminished by the publication of a faulty translation in a foreign language with readers who do not know the original, etc.
Accordingly, the entire field of intellectual property law is the result of a long and very controversial discussion. The traditional concept of property in § 903 BGB is based on things (§ 90 BGB) and not on works .
In the course of this discussion, the view was taken that the author had to accept the processing of his case. Until 1901, for example, freedom of translation was widely recognized.
Today, on the other hand, § 23 UrhG takes into account the protection of the author from editing. The rule is literally:
"Edits or other redesigns of the work may only be published or used with the consent of the author of the edited or redesigned work. If it is a filming of the work, the execution of plans and drafts of a work of the visual arts, a replica of a work of architecture or the processing or redesign of a database work, the production of the processing or redesign requires the consent of the Author. "
The legislature differentiates between the production and the publication of an adaptation. According to § 23 sentence 1 UrhG, publication requires the consent of the author of the original work in any case. In contrast, the production of an adaptation is basically free of permission, provided that it is not about the filming of a work or the execution of plans and drafts, for example in the field of sculpture , or architectural works or database works , because in this case the author has already been mere manufacture is impaired in its legal position.
literature
- Christian Bielefeldt, Marc Pendzich: Original and adaptation - cover version, remix, sampling . Lugert / Cornelsen 2007. ISBN 978-3-06-081031-4
Individual evidence
- ↑ Winfried Bullinger In: Wandtke / Bullinger, Copyright, 3rd Edition 2009, § 23 Rn. 3.
- ^ Daniel Gutmann, Austrian, German and European Copyright in Internet, (Diss.) 2003, ISBN 3-8305-0516-7 , p. 46.