International Copyright (Germany)

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The international copyright law of the Federal Republic of Germany is a branch of international private law . It is made up of aliens law , which determines who should receive copyright protection, and conflict of laws , which determines which state law is applicable.

Territoriality principle and universality principle

In scientific discourse, the principle of territoriality and the principle of universality oppose one another . The former limits the effectiveness of subjective law to the territory of a state. Historically , it is consistent with the view that copyright as a state privilege, like any act of sovereignty, can only have an effect within state borders. According to this, a subjective right can only be violated in Germany under German law and abroad only under foreign law. Of course, if international jurisdiction exists, German courts can still apply the copyright of foreign states and determine a violation there. According to the prevailing opinion, the effect of the principle of territoriality is exhausted in its alien law dimension; It does not make a statement in terms of conflict of laws.

According to the more recent opinion, the principle of territoriality has outlived itself with the recognition of copyright under natural law. It would arise universally with the creation of the work and, like other subjective absolute rights (such as property ), would only be structured in a positive legal manner. As a result of Friedrich Carl von Savigny's law, the doctrine of the statutes , not to focus on the law on the subjective right, is outdated and forms a foreign body in international private law. In addition, it leads to the targeted disadvantage of foreigners, whose compatibility with Art. 3 GG is doubtful (loc. Cit. BVerfGE 81, 208 (224)). Within the EC, the ECJ in 1993 confirmed the incompatibility of German law on aliens with Article 12 of the EC Treaty

Aliens Law

Section 120 (1), sentence 1 of the Copyright Act stipulates that German authors always enjoy copyright protection under German law. EU foreigners are on an equal footing with Germans in accordance with Section 120 (2) UrhG. In cases of multiple citizenship, German citizenship prevails. The loss of German citizenship has no influence on the previously created works. If you acquire German citizenship, this also has an effect on previously created works. Analogously to § 136 UrhG, in these cases, however, users who have relied on the public domain are to be protected.

Conflict of laws

In Germany, the conflict of laws for copyright is only partially regulated. With Art. 8 Para. 1 Rome II-VO a new conflict of law norm for copyright infringements was created. In the area of ​​application of the Rome II Regulation, the law of the protected country applies accordingly. The previously different views in Europe have thus been standardized at least for the part covered. In the past, the links to copyright infringements were assessed differently in Europe: some states (e.g. Switzerland, Liechtenstein and Italy) subject them to the law of the protected country (lex loci protectionis) ; Greece, Portugal and Romania, however, the country of origin (lex originis). The prevailing opinion in Germany ( following Eugen Ulmer ) subordinates the claim to the law of the state for whose territory protection is claimed. The opposite view ( Schack ) considers this with the natural law justification of copyright to be outdated and wants to subject copyright to a uniform statute. This goes back to the international private law principle of the protection of well-earned rights.

Regardless of this, the new regulations of Art. 8 Para. 1 Rome II-VO are not without controversy. In a highly acclaimed project of the European Max Planck Group for International Private and Civil Procedure Law of Intellectual Property (CLIP), basic rules of international private and civil procedural law of intellectual property (CLIP basic rules) were developed. These go beyond the protected land principle contained in Art. 8 Rome II-VO in Internet cases. Building on this, fundamentally new drafts for a comprehensive redesign of the regulations for international copyright law have also been proposed in recent research. With these, international copyright law is comprehensively re-regulated based on the interests of the parties.

literature

  • Haimo Schack : Copyright and Copyright Contract Law . Mohr Siebeck, Tübingen 2007, Part Six: The International Dimension, Rn. 792-938.
  • Haimo Schack : On the connection of copyright law in international private law . Duncker & Humblot, Berlin 1979.
  • Haimo Schack: Copyright infringement in international private law. From the point of view of conflict of laws . In: GRUR Int . 1985, p. 523-525 .
  • Eugen Ulmer : The intellectual property rights in IPR . Heymann, Cologne 1975.

Individual evidence

  1. ↑ Jan Philipp Oppermann: The collision law connection of international copyright violations: the universal understanding in copyright law . Nomos, Baden-Baden 2011, ISBN 978-3-8329-6269-2 .
  2. ^ Haimo Schack : Copyright and Copyright Contract Law . 4th edition. Mohr Siebeck Verlag , Tübingen 2007, ISBN 3-16-148595-5 , Rn. 1142-1152.
  3. ↑ Dt. Version of the CLIP basic rules. (PDF) Retrieved August 20, 2018 .
  4. ↑ Tobias Schroeter: Overcoming the principle of territoriality when linking the content of copyrights - A comparative study of European and US-American international private law . 2018, p. 215 ff ., urn : nbn: de: hbz: 6-27179630867 .