Statutory license

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In copyright law, a legal license is an authorization to use a protected work that is granted by law, but for which the author or rights holder must be remunerated. In German-language literature, the statutory license is usually differentiated from the compulsory copyright license , for which the consent of the author or rights holder must be obtained before use. The terminology is, however, inconsistent internationally.

Classification and justification

Copyright as an exclusive and absolute right that acts against everyone genuinely gives the author the power to freely determine whether, how and under what conditions another person may use his work. Regardless of whether one wants to see the moral justification of copyright protection more in personalistic or utilitarian considerations, it is recognized in all copyright systems in the world that this legal position must also be set limits in order to be compatible with the most diverse cultural, social, technological, economic and political To reconcile needs. In addition to restrictions on the subject matter of copyright protection, such compensation takes place, in particular, through restrictions such as the freedom of private copying . The legislature hereby excludes certain acts of use from the author's power of disposal. This right of use is in turn granted free of charge in some cases, in other cases the legislature considers remuneration of the author to be necessary with a view to the necessary balance of interests. Such usage exemptions that are subject to remuneration are called statutory licenses.

Situation in Germany

Position and legal consequences

In the catalog of the limitation provisions granted in the German Copyright Act (UrhG), the statutory license is the predominant form of exemption from use in addition to the complete exception to copyright protection. It is characterized by the fact that the legislature attaches the legal consequence of a legal obligation to an actual, objective act of use ; the act of use thus represents a so-called real act , i.e. the obligation arises regardless of whether this legal consequence is intended by the user or not. (In exceptional cases, the obligation arises in the case of reproduction for private and other personal use in accordance with Section 53 UrhG, probably prior to the placing on the market of the devices or blank media suitable for reproduction.)

The main content of this contractual relationship is the claim for remuneration between the user (or, in the case of Section 53, the device or blank media manufacturer) and the author or rights holder; in addition, there are also partial obligations to information and notification against the user. For example, the author can request information from manufacturers of devices and blank media about the type and number of devices and storage media they have sold or otherwise placed on the market ( Section 54f (1) UrhG); this enables the copyright holder or rights holder to make his claims for remuneration. In the case of the reproduction of works in the context of collections for religious use, which is also subject to a statutory license ( Section 46 ), the user must notify the author or, alternatively, the rights holder, of his intention to use it “by registered letter” before the act of use is carried out, and may not do so for two weeks begin using it after it has been sent ( Section 46 (3) sentence 1 UrhG). The particular purpose of this obligation to notify is to enable the author, if necessary, to exercise his right to prohibit due to changed convictions from Section 46 (5) UrhG.

The relationship between the legal license and the (contractual) license as such is occasionally controversial in the literature. In some cases it is assumed, particularly with regard to Section 53 UrhG, that legal licenses would grant rights of use in the same way as contractual licenses, but in a legal way. The legal obligation would then be two-sided: On the one hand there would be a right to use the user, on the other hand - in return - the said compensation claims including secondary obligations against the user. In contrast, the prevailing opinion sees the statutory license as a unilaterally binding statutory obligation; the author's exclusive right is restricted by the legislator and obligations are unilaterally imposed on the user or (in the case of Section 53 UrhG) on a third party without the user acquiring a right to use in return.

Individual cases

The following restrictions are specifically designed as legal licenses in the UrhG (as of August 2018):

  • The exemption in favor of disabled people ( § 45a UrhG), for which an "appropriate remuneration" is to be paid according to § 45a Paragraph 2 Sentence 1 UrhG. The claim for remuneration can only be asserted by a collecting society ( Section 45a (2) sentence 2 UrhG).
  • The exemption of collections for religious use ( § 46 UrhG), for which an "appropriate remuneration" is to be paid according to § 46 Paragraph 4 UrhG.
  • The exemption from recordings of school radio broadcasts that are not deleted at the end of the school year ( Section 47 (2) UrhG), for which, according to Section 47 (2) sentence 2 UrhG, an “appropriate remuneration” is to be paid.
  • The exemption from reprinting and public reproduction of individual broadcast comments and articles ( Section 49 (1) UrhG) for which “reasonable remuneration” is to be paid according to Section 49 (1) sentence 2 UrhG. The claim for remuneration can only be asserted by a collecting society ( Section 49 (1) sentence 3 UrhG).
  • The exemption of certain forms of public communication of published or published works ( § 52 UrhG), for which, according to §§ 52 Paragraph 1 Clause 2, Paragraph 2 Clause 2 UrhG, an “appropriate remuneration” is to be paid.
  • The exemption of reproduction for private and other personal use ( § 53 German Copyright Act), for after ff §§ 54th Copyright Act, manufacturers, importers and operators of equipment and storage media whose type alone or in conjunction with other devices, storage devices or accessories is used to make such reproductions, in principle have to pay an "appropriate remuneration". The claim for remuneration can only be asserted by a collecting society.
  • The exemption to illustrate teaching and teaching at educational institutions for non-commercial purposes ( Section 60a UrhG), with the same remuneration consequences as for reproduction for private and other personal use (see above) plus an additional claim to appropriate remuneration ( Section 60h UrhG) ).
  • The exemption for the inclusion of small parts of published works in teaching and teaching media ( § 60b UrhG), with the same remuneration consequences as for duplication for private and other personal use (see above) plus an additional claim to appropriate remuneration subject to collecting society ( § 60h UrhG) .
  • The exemption for the use of small parts of works for non-commercial scientific research ( § 60c UrhG), with the same remuneration consequences as for duplication for private and other personal use (see above) plus an additional claim to appropriate remuneration ( § 60h UrhG).
  • The exemption of certain uses in the context of automated use (text and data mining) in the context of scientific research ( Section 60d UrhG), with the same remuneration consequences as for reproduction for private and other personal use (see above) plus an additional claim to appropriate collecting society Remuneration ( § 60h UrhG).
  • The exemption of certain uses by publicly accessible libraries and publicly accessible archives, museums and educational institutions ( §§ 60e , 60f UrhG), with the same remuneration consequences as for duplication for private and other personal use (see above) plus an additional claim to appropriate remuneration, which is subject to collecting society ( § 60h UrhG).
  • The exemption of certain uses by publicly accessible libraries ( § 60e UrhG), with the same remuneration consequences as for reproduction for private and other personal use (see above) plus an additional claim to appropriate remuneration ( § 60h UrhG).
  • The exemption from copying and making certain orphan works available to the public ( §§ 61 ff. ), Which grants rights holders who only appear after the start of privileged use, a right to appropriate remuneration ( § 61b (2) UrhG)

literature

  • Friedrich-Karl Beier: Exclusivity, statutory licenses and compulsory licenses in patent and design law . In: Commercial legal protection and copyright . tape 100 , no. 3/4 , 1998, p. 185-195 .

Remarks

  1. ↑ See Dreier in Dreier / Schulze, Copyright Act, 6th edition. 2018, before Sections 44a – 63a marginal numbers. 11; Melichar in Schricker / Loewenheim, copyright, 4th edition 2010, before §§ 44a ff. Rn. 23; Schunke in Artur-Axel Wandtke (Ed.), Copyright, 5th edition, De Gruyter, Berlin 2016, ISBN 978-3-11-040123-3 , pp. 274 f .; on Switzerland: Barrelet / Egloff, The new copyright, 3rd edition 2008, Art. 19 Rn. 2; Cherpillod in von Büren / David, Copyright and Related Rights (SIWR II / 1), 3rd edition 2014, Rn. 740; on Austria: Walter, Austrian Copyright Law, 2008, Rn. 1412; Dillenz / Gutmann, Commentary on UrhG & VerwGesG, 2nd edition 2004, before §§ 41 ff Rn. 11; on the GDR: Püschel in Heinz Püschel (Ed.), Copyright, 2nd edition, State Publishing House of the German Democratic Republic, Berlin 1986, p. 52.
  2. ↑ See Reto M. Hilty, Copyright, Stämpfli, Bern 2011, ISBN 978-3-7272-8660-5 , Rn. 212. Sterling, World Copyright Law, 3rd edition 2008, § 32.03 differentiates between the compulsory license in the broader sense (“statutorily granted license to do an act covered by an exclusive right, without the prior authority of the rightowner ") and the compulsory license in the narrow sense (" a license granted on application to the authority, court, tribunal, etc. specified in the law "), which he of the statutory license (statutory license) (" effective by the mere fulfillment of the statutory conditions, without the necessity of prior application to an authority ”). Similar to here for the legal license Paul Goldstein and Bernt Hugenholtz, International Copyright, 3rd ed., Oxford University Press, New York 2013, ISBN 978-0-19-979429-4 , p. 372 (“compensated limitation”).
  3. ↑ See Schack, Copyright and Copyright Contract Law, 8th edition 2017, Rn. 4th
  4. ↑ On this in detail Malte Stieper, Justification, Legal Nature and Availability of the Barriers of Copyright, Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-150177-7 , part 1.
  5. ↑ See Paul Goldstein and Bernt Hugenholtz, International Copyright, 3rd ed., Oxford University Press, New York 2013, ISBN 978-0-19-979429-4 , p. 372; Malte Stieper, Justification, Legal Nature and Availability of the Barriers of Copyright, Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-150177-7 , pp. 9 ff., 96.
  6. ↑ On this system of copyright restrictions cf. Ricketson / Ginsburg, International Copyright and Neighboring Rights, Vol. 1, 2nd edition 2005, § 13.01.
  7. ↑ a b cf. Melichar / Stieper in Schricker / Loewenheim, Copyright, 5th edition 2017, before Sections 44a ff. Rn. 10.
  8. ↑ See Loewenheim in Schricker / Loewenheim, Copyright, 5th edition 2017, § 54 Rn. 16; Dreier in Dreier / Schulze, Copyright Act, 6th edition. 2018, Section 54 marginal no. 11; Dreyer in Dreyer / Kotthoff / Meckel, Copyright Act, 3rd edition 2013, § 54 Rn. 25. As more or less expressly §§ 54 Paragraph 1, 54a Paragraph 1 Clause 1 old version of August 1, 1994 (revised with effect from January 1, 2008, Federal Law Gazette 2007 I p. 2513 ), cf. BGH, judgment of November 29, 1984, I ZR 96/83 = GRUR 1985, 280, 282 - Manufacturer term II.
  9. ↑ See Melichar in Schricker / Loewenheim, Copyright, 5th edition 2017, § 46 Rn. 23; Dreier in Dreier / Schulze, Copyright Act, 6th edition. 2018, Section 46 marginal no. 16; Loewenheim in Loewenheim, Handbook of Copyright, 2nd edition 2010, § 31 Rn. 199
  10. ↑ On this issue cf. in detail Malte Stieper, justification, legal nature and availability of the barriers of copyright, Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-150177-7 , p. 139 ff.
  11. ↑ See Dreier in Dreier / Schulze, Copyright Act, 6th edition. 2018, before Sections 44a – 63a marginal numbers. 14th