editio princeps (copyright)
The Latin term editio princeps refers to a provision of copyright law that derives special property rights from the first publication of posthumous works.
The name comes from the Latin name for the ( printed ) first edition or the first publication of a literary or musical work.
Legal situation in Germany
Since 1965, German copyright law has recognized property rights from the editio princeps , the first publication of unpublished works after the copyright has expired: Section 71 of the law on copyright and related rights (Copyright Act, UrhG) regulates the protection of “posthumous works”.
With the Directive 93/98 / EEC harmonizing the term of protection of copyright and certain related rights (period of protection directive) of 29 October 1993, this 25-year performance protection laws in the European Union (EU) harmonized. In Germany, the Term of Protection Directive was implemented in the Copyright Act on July 1, 1995.
On January 15, 2007, the 1993 Directive was replaced by Directive 2006/116 / EC of the European Parliament and of the Council of December 12, 2006 on the term of protection of copyright and certain related rights .
In contrast to § 70 UrhG, which protects editions of works not protected by copyright or texts of academic activity, § 71 UrhG grants a right to the "discovered" work. According to the highest court rulings, the prerequisite is that the person referring to the "editio princeps" can prove that the work has not yet "appeared". In principle, a work has been published within the meaning of Section 6 (2) UrhG if, with the consent of the person entitled, copies of the work have been offered to the public or brought into circulation in sufficient numbers after their production.
- Fictional example: A family keeps a photo of a sailor who photographed the iceberg that the Titanic rammed. Provided that after the expiration of this rule protection period (at a photographic work is published 70 years after the death of the photographer) for the first time, may be the one who makes this publication, for 25 years of a related right of the photo take. The image in the public domain is thus to a certain extent protected again in favor of the discoverer.
Section 71 UrhG is of practical importance, especially in the field of music editing .
The "Sky Disc" case
In 2003, the Magdeburg Regional Court rated the issue of images of the Nebra Sky Disc in a press release and on a CD-ROM as an "appearance" in the sense of an editio princeps , initiated by the State of Saxony-Anhalt during a press conference ; As a result, the state of Saxony-Anhalt can control any exploitation like an author for up to 25 years after the first appearance of images of the sky disk that were authorized by it. In October 2003, the Magdeburg Regional Court granted the State of Saxony-Anhalt such rights for the 3,600 year old sky disk discovered on July 4, 1999.
In another proceeding, the Magdeburg Regional Court decided in April 2005 that an illustration based on the sky disk on the title of a book also violated the rights of the state of Saxony-Anhalt from the editio princeps .
However, these decisions by the Magdeburg Regional Court are now considered outdated due to the decisions in the Motezuma case.
The "Motezuma" case
In July 2005, was Sing-Akademie zu Berlin , referring to § 71 of the Copyright Act by interim order of the District Court Dusseldorf , the performance of a recently in its archive discovered (re) score of Vivaldi - Opera Motezuma ban. The Düsseldorf Higher Regional Court lifted this ban in August 2005.
The decisive factor was that the court did not consider it proven that the work had not yet appeared. As an exception to the fundamental freedom of use, § 71 UrhG should be interpreted narrowly. The burden of proof that the opera did not appear rests with the person who invokes the editio princeps . As an “appearance” within the meaning of the law, the court also recognized that the work - as was usual with other comparable operas at the time of its creation - was copied and sent by copyists for the interested public.
On January 22nd, 2009, the Federal Court of Justice ruled in the final instance that the Sing-Akademie did not enjoy a corresponding ancillary copyright on the score, as it can be assumed that the composition was published in 1733.
Legal situation in Austria
In Austria , Section 76b of the Austrian Copyright Act only speaks of “publication”, but not of “appearance”: “Anyone who legally publishes an unpublished work for which the term of protection has expired is entitled to the exploitation rights to the work like an author. This property right expires twenty-five years after publication; the period is to be calculated according to § 64. ”A work is published in accordance with § 8 of the Copyright Act if it has been“ made available to the public with the consent of the person entitled. ”This also includes public reproductions (for example opera performances) and exhibitions.
Legal situation in Switzerland
The Switzerland knows a editio princeps- not scheme to date.
criticism
Critics point to the restriction of academic freedom by § 71 UrhG and to the fact that, for example, in Switzerland , where such a provision does not exist, no decline in the scientific editing system can be ascertained.
Web links
literature
- Horst-Peter Götting and Anne Lauber-Rönsberg: The protection of bequeathed works. Nomos, Baden-Baden 2006, ISBN 978-3-8329-2350-1 .
- Eva Langer: The protection of posthumous works. A directive-compliant and comparative law interpretation of § 71 UrhG. V&R Unipress, Göttingen 2012, ISBN 978-3-89971-935-2 .
- Felix Stang: The copyright work after the term of protection has expired. Negative overlapping of property rights, re-monopoly and the principle of the public domain. Mohr Siebeck, Tübingen 2010, ISBN 978-3-16-150699-4 . [For the protection of inherited works: pp. 135–146.]
- Malte Stieper: The proof of negative facts, in particular the novelty of intellectual property in the infringement process. In: Journal of Civil Procedure. 123, No. 1, 2010, pp. 27-48. [For the protection of inherited works: pp. 45–48.]
- Malte Stieper: Intellectual property in cultural assets. Possibilities and limits of the re-monopoly of works in the public domain. In: Commercial legal protection and copyright. 2012, pp. 1083-1092.
- Heinz Stroh: The protection of inherited works according to § 71 UrhG. In: Bernward Zollner and Uwe Fitzner (eds.): Festschrift for Wilhelm Nordemann. Nomos, Baden-Baden 1999, ISBN 3-7890-6024-0 , pp. 269-283.
- Anton Waitz: The ancillary copyright on the inherited work. Nomos, Baden-Baden 2008, ISBN 978-3-8329-3819-2 .
Individual evidence
- ↑ District Court Magdeburg, judgment of October 16, 2003, Az. 7 O 847/03 . The appeal filed before the Higher Regional Court of Naumburg, Az. 7 U 136/03, was withdrawn on April 8, 2004 after an out-of-court settlement.
- ^ LG Magdeburg of April 19, 2005, AZ 5 W 32/05
- ↑ Düsseldorf Higher Regional Court, Motezuma , judgment of August 16, 2005, file number I-20 U 123/05
- ^ BGH, judgment of January 22, 2009, file number I ZR 19/07 - Motezuma.
- ↑ Klaus Graf: E-Medieval Studies in the Field of Tension between Business Interests and Freedom of Information .