History of Copyright
The ancient legal systems knew no copyright in the modern sense. However, a relationship between author and work was very well known, be it understood as real pride in one's own achievement or as the passing on of a divine gift. In more recent legal historical research, reference is also made to functional equivalents in the area of moral law, i.e. H. the right of publication, naming rights and the prohibition of distortion, which, however, did not achieve the impact of an enforceable legal norm.
This is made clear by the origin of the word plagiarism: It goes back to one of the oldest known copyright infringements from Rome in the first century AD. The Roman poet Marcus Valerius Martialis coined the term "plagiarism". He compared his epigrams with freed slaves and called a certain Fidentinus, who had falsely passed poems by Martialis as his own, as a robber ( Latin "plagiarius").
The question of why the technically so highly developed Roman law did not grant protection comparable to today's copyright law is answered differently: On the one hand, reference is made to "objective thinking", which was not capable of abstracting only "intellectual" property. Another view points to the structure of society in Rome. The great bulk of the labor force was recruited from slaves; This was reflected in the legal system in such a way that the artes liberales could only offer their services in free contractual forms; The contractual partner was only able to pay an honorary salary, the honorarium , out of gratitude for the friendship . This corresponds to the fact that the Roman citizen would have considered it dishonorable to place creative achievements under property protection. Another reason given for the lack of copyright in antiquity is the technological complexity of reproduction and the consequent low economic interest in monopolizing it.
Even in the Middle Ages, the right to intellectual works was unknown. There were legal rules only for the things in which the intellectual work showed, especially for the ownership thereof. For example, a book could not be stolen, but it could be copied. The processing of a material by many different artists and authors was the norm, as was the adoption or change of songs and pieces of music by other musicians. If an author did not want his text to be changed, he made do with a book curse - Eike von Repgow , the author of the Sachsenspiegel , wished anyone who falsified his work to have leprosy on their necks.
Here the legal-historical and intellectual-historical observation touches: the citation practice in those times was also much less strict than it is today. The rank of an artist was measured more by his craft skills than by the originality of his inventions .
Late Middle Ages
With the invention of the printing press (around 1440) it became easier to make copies of a work in larger quantities. The author still had no "copyright" to the side. He had to be happy when his work was not only printed but the printer or publisher paid him something for the manuscript. Now it happened that other printers reprinted first prints. This made the business more difficult for the first printer, because he invested more manpower and possibly paid an author - the reprint could of course offer his products cheaper. Even an author could be dissatisfied with reprints - they were usually produced less carefully: errors crept in or the text was even intentionally changed:
“Now the damage would still have to be suffered, if only they didn't make my books so wrong and shameful. But now they print the same and so hurry so that when they come back to me, I don't know my own books. "
In order to oppose reprinting, printers therefore requested special rights from the authorities that forbade the reprint of a work at least for a certain period of time. The designation for these special rights is a privilege , imprimatur in the ecclesiastical area - the latter also came into use in the secular area in the sense of printing approval / printing approval on the part of the printing customer and has remained to this day. The interests of the printers met with those of the authorities who wanted to influence the fonts published in their domain. This was particularly successful in France with its early absolutist structure, less so in Germany, for example. Here some sovereigns even deliberately ignored violations by publishers of imperial privileges in order to support them economically and to bring coveted literature into the country cheaper. The ideas of the Enlightenment also spread to a large extent through pirated prints .
In Germany such a privilege was granted to Albrecht Dürer , for example . In an epilogue to his woodcut cycle on the life of the Virgin Mary in 1511, Dürer stated that he had received an imperial privilege, which, however, was not preserved. What is interesting about that epilogue is that Dürer already wrote of “ingenium”, meaning “creation”, which was still unusual for authors and artists of the time and a new self-image that went along with the Renaissance. Dürer's first obtained privilege dates back to 1525. His widow also received a privilege after his death in 1527, which was unusual at the time and speaks for Dürer's exceptional position as an artist.
However, privileges protected the creator as a person ( personal rights ) and did not yet bring the authors any income. Work continued as one thing. In the middle of the 16th century, territorial privileges were introduced - general reprints in a certain area for a limited period of time.
When the publishers started paying the authors fees , the conviction arose that they (the publishers) would thus be entitled to an exclusive industrial property right (doctrine of publisher ownership), even if they had no privilege for a work. Reprinting was therefore forbidden once the publisher had acquired the rights.
18th and 19th centuries
Property-like rights to intellectual achievements (and the phenomenon of immaterial property ) were first theorized in the 18th century . An English law of 1710, the so-called Statute of Anne , first recognized an exclusive right of reproduction for the authors, who then ceded it to the publishers. After the agreed time all rights reverted to the author. The work had to be entered in the booksellers' guild register and provided with a copyright mark so that it was protected. The United States introduced the procedure in 1795 (but this registration was abolished in England in 1956 and in the United States in 1978). The idea of intellectual property was predominantly based on the theory of natural law . Even France resulted in two laws of 1791 and 1793 Propriété littéraire et artistique one. Appropriate protection was granted in Prussia in 1837. The Federal Assembly ( German Confederation ) also decided in 1837 a ten-year protection period from the publication of the work - extended to 30 years after the death of the author in 1845 (post mortem auctoris) . In 1870, general copyright protection was introduced in the North German Confederation , which the German Reich took over in 1871 and later expanded. In 1886 the first international, multilateral agreement on copyright protection was concluded with the Bern Agreement . A minimum protection period of 50 years for all works (except for photographic and cinematographic works) of the countries of the association was agreed.
On September 6, 1952, the World Copyright Agreement was passed in Geneva . It should represent a worldwide regulation for the protection of copyrights and facilitate the distribution of intellectual works. The signatory states undertook to adapt their own legal bases accordingly.
In Germany, the still valid German law on copyright and related rights (Copyright Act - UrhG) was promulgated on September 9, 1965. In particular, it dissolved the law on copyright in works of literature and music (LUG) of June 19, 1901, and largely the law on copyright in works of fine arts and photography (Art Copyright Act - KUG, KunstUrhG) of January 9, 1907 from. Among other things, it provided for an extension of the copyright from 50 to 70 years after the death of the author. This made Germany an international pioneer in terms of extending copyright periods. At the same time, private copying was legalized again, which had been repealed in the 1950s by court decisions contrary to the wording of the law at the time.
Since the 1990s, copyright has been dealt with in several international treaties in which the protection of copyrights has been adapted to the new technical possibilities of the Internet and in some cases significantly strengthened. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), adopted in 1994 within the framework of the World Trade Organization (WTO), establishes minimum global standards for copyright, according to which exceptions to the exclusive rights of authors must be reduced to a few special cases (three-step test , Art. 9 para. 2 RBC ). At the same time, it restricts the rental of works protected by copyright and stipulates a minimum protection period of 50 years beyond the death of the author ( post mortem auctoris ).
In 1996, the World Intellectual Property Organization (WIPO) signed the WIPO Copyright Treaty (WTC) and the WIPO Performances and Phonograms Treaty (WPPT). In particular, they regulate questions of copyright in the information society. In detail, the following topics were discussed:
- The right of reproduction was strengthened and the saving of works on the computer was expressly subsumed under this right. Exceptions to this strengthened right of reproduction have been reduced to a few special cases.
- Right to make available . The transmission and even the offering of works on the Internet is only permitted with the consent of the author. This also applies if these works are only made available to a few members of the public (“on demand”). In addition to the sale, the licensing of works is now also permitted. In this case, the limitations of copyright do not apply. This enables new forms of use such as pay-per-view , where you have to pay individually for each consumption process.
- Legal protection of technical protective measures . The manufacture, distribution, import or offer of devices, software, products or components, the purpose of which is to revoke, circumvent, remove, deactivate or otherwise outsmart copy protection mechanisms of the copyright holder are prohibited. It is also forbidden to describe the mode of operation of these devices so that they can be recreated (black box commission). This also makes copyright law a technology control right. It now regulates matters that were previously beyond its reach (Paracopyright).
- Legal protection of copyright management information . The modification, falsification or deletion of information that identifies the author or the consumer or defines the permitted forms of use are also prohibited.
The TRIPS and the other treaties unilaterally strengthened the economic interests of authors and rights users. In contrast, the rights of consumers and the general public were restricted.
As a result of these treaties, individual states only have little leeway in the design of copyright. Unusual regulations would, for example, be treated within the framework of the WTO as distortions of free world trade, which can be sanctioned by an arbitration committee. In addition, the United States also exerts bilateral pressure on individual states which, in their opinion, do not protect copyright law intensively enough (see e.g. the cases The Pirate Bay and Allofmp3 ).
These copyright agreements were implemented in national and supranational law in the United States in 1998 with the Digital Millennium Copyright Act (DMCA) and in the EU in 2001 with the EC Copyright Directive. They took over most of the tightening specified above in the TRIPS and the WCT or WPPT. They also regulate the responsibility of Internet service providers (ISPs). They are liable for their customers' copyright violations if they do not remedy this immediately at the request of the rights holder. You are also obliged to disclose the identity of the infringer.
The entertainment industry has been lobbying extensively in favor of these regulations.
The EU Copyright Directive is to be implemented in national law by the member states. In this context, an amended copyright law has been in effect in Germany since September 13, 2003, which, among other things , criminalizes circumvention of effective copy protection for commercial as well as private purposes. The § ff. Copyright Act provide for a "technical protection measures". According to Section 95a, Paragraph 1 of the Copyright Act, technical protective measures (e.g. copy protection) may not be circumvented without the consent of the rights holder - not even to make a private copy that is permissible in itself . No circumvention in this sense is the production of an analog copy of a digital, protected original.
In Austria, the implementation of the EU Copyright Directive came into force on July 1, 2003.
Demands for openness
In recent years, contrary to all legislative trends, the current copyright law has come under increasing criticism from the public and some lawyers and economists.
Above all, it is criticized that copyright is becoming more and more of a "right to exploit rights" without considering the general public and the changing Internet and information society. Copyright in its current form is a relic of the last century, which in the age of interactive Internet applications and broadband connections criminalizes an entire generation and no longer lives up to its original intention in any way. Instead of inspiring and promoting creative work, the current copyright law restricts the development of culture and progress enormously.
Criticism also emanates from the bearers of traditional cultures in which the conceptions of work and individual author, as they are the basis of copyright law, have no equivalent. Traditional cultural expressions ( traditional cultural expressions ) are subject to their own local companies conventional arrangements, however, are in the public domain from the perspective of copyright and can be used without restrictions against the will of many of its carrier. At the United Nations Education, Science and Culture Organization (UNESCO) and the World Intellectual Property Organization (WIPO), there have been repeated initiatives to create protective regulations for traditional cultural expressions since the 1960s. Since 2000, an intergovernmental committee has met again at the World Intellectual Property Organization (WIPO) on this issue.
The demands that follow the criticism range from easy solutions such as a shortening of the minimum period of protection to an expansion and re-establishment of the (private) barriers of copyright law to the introduction of a culture flat rate , which denies the exclusive claims to ownership of immaterial goods. For example, In Germany , for example, the Pirate Party imposed a restriction on copyright law in order to react to the new circumstances. Other parties such as Bündnis 90 / Die Grünen are calling for a culture flat rate to reward those who work in culture . However, the bourgeois camp from the Union and FDP still strictly adheres to the idea of the strongest possible copyright.
For some time now, open source has been developing into an economic addition to traditionally commercial products in the software sector. Open source cooperation is particularly important because the licenses allow easy code exchange. Free licenses such as the GPL are based on copyright law, which they use in such a way that authors must always be named and works that build on may only be distributed under the same conditions. Creative Commons licenses allow users of texts, photos, pieces of music, etc. to define copyleft conditions , taking into account copyrights in different countries around the world . This option has been used more and more frequently in recent years. For example, B. Wikipedia also uses the copyleft principle.
Some Tatort authors, as members of the Association of German Scriptwriters, criticize the Greens, Pirates, Leftists and the “Netzgemeinde” for the “demagogic equation of free and free”. The "banality of legal violations" would be elevated to an "act of freedom". They would like to “make it clear that the sustainable production of high-quality art and culture cannot be organized in an amateurish way, like Wikipedia. After all, hundreds of thousands of people live from creative work and help with their (competitive) works to secure the ideal and material future of a post-industrial Federal Republic internationally ”. Because: "Films, music productions, web and advertising campaigns, architecture and design products are only even realized when the artistic ideas of the authors come together with capital and marketing know-how." That the Internet and providers like Google criminal platforms like "kino.to, megaupload." "the Pirate Bay" should definitely be prevented. They see a "historical compromise between authors and users" in front of them.
- Eckhard Höffner : History and essence of copyright law . Verlag Europäische Wirtschaft, 2010, ISBN 978-3-930893-16-4 (2 volumes).
- Fedor Seifert: About Books, Publishers and Authors - Episodes from the History of Copyright . In: NJW . 1992, p. 1270-1276 .
- Elmar Wadle : Copyright Between Yesterday and Tomorrow: Comments by a Legal Historian . In: University Speeches Saarland University . Saarbrücken 2007, ISBN 978-3-940147-02-8 .
- Walter Bappert: Ways to Copyright . V. Klostermann, 1962.
- Byoung Jo Choe (崔秉祚): Intellectual property in Roman law? - with special consideration of copyright law . In: Seoul Law Journal . tape 52 , no. 2 , 2010.
- Astrid Eggert: The legal protection of authors in Roman antiquity . In: Archive for Copyright and Media Law (UFITA) . 1999, p. 183-219 .
- Renate Frohne: Copyright in Ancient Rome? In: Archive for Copyright and Media Law (UFITA) . 2005, p. 799-811 .
- Katharina Schickert: The protection of literary authorship in the Rome of classical antiquity . Mohr Siebeck, Tübingen 2007, ISBN 3-16-148397-9 .
- Károly Visky: Intellectual property of the authors in ancient Rome . In: Archive for Copyright and Media Law (UFITA) . tape 106 , 1987, pp. 17th ff .
- Christopher Witcombe: Copyright in the Renaissance. Prints and the privilegio in sixteenth century Venice and Rome . Brill, Leiden 2004, ISBN 90-04-13748-3 .
- Ludwig Gieseke: From Privilege to Copyright: The Development of Copyright in Germany until 1845 . Nomos, 1998.
- Dong Han: Can I own my writings and sell them too? A brief history of copyright in China from the late Qing era to Mao's China . In: Chinese Journal of Communication . tape 3 , no. 3 , September 2010, p. 329-346 .
- Albert Osterrieth : The history of copyright in England: With a representation of the current English copyright law . CL Hirschfeld, 1895.
- Robert M. Reuss: Natural law or positivist concept: The emergence of copyright law in the 18th century in England and the United States of America . Nomos, Berlin 2010, ISBN 978-3-8329-5510-6 .
- Monika Dommann : Authors and Apparatus - The History of Copyright in Media Change . S. Fischer Verlag 2014, ISBN 978-3-10-015343-2
- Fedor Seifert: About books, publishers and authors - episodes from the history of copyright . In: NJW . 1992, p. 1270-1276 .
- Katharina Schickert: The protection of literary authorship in the Rome of classical antiquity . Mohr Siebeck, Tübingen 2007, p. 102 .
- Copyright, deutsche-anwaltshotline.de
- Károly Visky: Intellectual property of the authors in ancient Rome . In: UFITA . tape 106 , 1987, pp. 17 (35) .
- Hendrik Selle, Open Content? Ancient Thinking on Copyright , Revue Internationale des Droits de l'Antiquité 55 (2008) 469-484
- Walter Dillenz, Daniel Gutman: Copyright Law, Collecting Societies Law (Austrian). Comment. 2nd Edition. Springer, Vienna 2004, ISBN 3-211-20796-1 , p. 5
- See Ludwig Gieseke: From privilege to copyright. The development of copyright law in Germany until 1845. Göttingen 1995. ISBN 3-509-01682-3
- The Statute of Anne, 1710, Copyrighthistory.com (English)
- Instructive Simon Apel, Das Reichsgericht, copyright and the party program of the NSDAP (PDF; 65 kB), in: Zeitschrift für das Juristische Studium (ZJS) 2010, 141
- World Copyright Agreement (PDF; 518 kB)
- Jessica Litman: Digital Copyright. Prometheus Books, Amherst 2001, ISBN 1-57392-889-5 .
- §§ 69a ff. UrhG (DE) or § 40d (AT)
- Don´t criminalize the 21st century culture !, summary Lawrence Lessig, trendbuero.de
- See, for example, Marc-Antoine Camp. "Who can sing the song?", Sic! Journal for Intellectual Property, Information and Competition Law No. 4/2005, 307ff. (PDF; 137 kB)
- WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore IGC
- Berlin Declaration , Wizards of OS (English)
- Open letter from 51 Tatort authors ( memento of the original from June 15, 2012 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.
- Rock musician Sven Regener settles with pirate party ( Golem.de )