A license ( Latin licet , "it is allowed" and then: licentia , "freedom", "permission"; English license ) in various fields , the approval or permission of a legal entity , a legal economic advantage to be allowed.
In this sense, the parties involved are the licensor holding the right and the beneficiary licensee who jointly conclude a license agreement . The object of the license agreements in industry and trade is the granting of rights of use to industrial property rights ( patents , concessions , utility models , registered trademarks ), the conditions of which are listed in specific patent, concession or trademark agreements. In franchising , too , franchisees often speak of the license taken over.
The subject of a license agreement can also be special rights granted by the state or private licensor, for example the license to play team athletes in professional sport , license to play musicians in the former GDR , UMTS mobile radio rights, but also for hunting licenses ( hunting patents). Only immaterial goods come into consideration as legal objects .
In linguistic research , opinions differ about the origin and definition of the loan word “license” . This is mainly due to the equivocal use of contemporary language in the Middle Ages . At the University of Bologna there were people who had passed the private exam but had not yet undergone the public award of a doctorate ( Latin licentiati ). From this the term for licensees is still derived in Germany today . Acquiring a doctorate ( Latin: licentia doctorate ) was valid from 1165 at the latest as an authorization to request the highest dignity of the faculty. The teaching license ( Latin licentia docendi ) in turn was considered a full teaching license . The third Lateran Council decided in 1179 under Alexander III. that both the “licentia docendi” and the lessons were given free of charge. While at German universities the license was only a preliminary stage to the doctorate and not an independent academic degree , in Italy the license was considered an academic degree.
The license appeared as a permit ( Latin licentia ) evidently for the first time under King Philip II of France in 1204, according to which "all sales rights for the sale of wood belonged to the king". He issued an express sales license ( Latin: licencia vevendi ) for his forests in Retz , whose wood “nobody was allowed to sell, give or lend without the license of the king”. Later the sales license extended to land , then to goods for market participants in markets . At the end of the 15th century, the license spread into the language of the authorities and traders. Ulrich Füetrer, for example, mentioned “lizenze” as a synonym for permits in 1478. In Flanders in 1591 the word “Licent” stood for the “fee for an export permit ”.
In the Imperial Patent Act of May 1877 there was no provision for the license and the license agreement. Since around 1880, jurisprudence and specialist literature have tried to capture the term license. For Rudolf Klostermann , the license represented “the permission to use the invention”. In March 1911, the Reichsgericht (RG) spoke of a “permission to use”. In the Patent Act of May 1936, the term appeared as a compulsory license . This legal term, which is still used today in (1) of the Patent Act, covers all licenses compulsorily issued by the patent court. The Copyright Act of January 1966 speaks generally of the right of use, but also knows the “license chain” ( Paragraph 2, Clause 1 UrhG). The Trademark Act first mentioned the license in January 1995.
A distinction is made between exclusive licenses and non-exclusive licenses . The former are licenses in which the licensor grants the licensee the sole right of use, while in the latter the licensor reserves the right to exercise the right of use himself or to grant further licenses to third parties.
Licenses in Copyright
The copyright is by international conventions ( UN -controlled) and by national legislation. Any violation of these rules will be followed by claims for damages by the licensor and, if requested, criminal prosecution by the public prosecutor's office. In private law, purchase agreements, loan agreements and special license agreements regulate the rights of the purchaser and his obligations towards the licensor.
A frequently used licensing procedure takes place between right holders and rights holders when events are taken over and distributed electronically. These are all kinds of concerts, performances, sporting events, etc. For example, FIFA for the 2006 World Cup and UEFA for the 2008 European Football Championship granted licenses to broadcast the games on large screens for public viewing . In principle, these licenses were free of charge for non-commercial purposes. The licenses became chargeable as soon as a commercial sponsor was involved. The term “license fee”, which is often used, is wrong here, because it was usually a question of non-state contracting parties. It is a purchase of rights.
Types of usage rights (licenses)
The term license is not used everywhere in the law. The copyright uses z. B. the concept of the right of use without meaning anything else. The license can be granted in several ways. It can initially be issued as a non-exclusive (so-called simple) license . Such a license right allows the licensee (usually by way of a positive right) to use the property right . For example, he can manufacture a product that is the subject of a patent, provided the license agreement allows this. An exclusive license is a right of use that grants the licensee exclusive access to a certain area or for a certain type of use, etc. Variations such as the sole or operating license, which bind the right of use to a single licensee or his company, are not independent license types.
A highly controversial question across all protective laws is that of the “ thinginess ” of the license. In patent law , for example, it is assumed that the exclusive license has "real" effect. Also z. B. in copyright, trademark, utility model, design and plant variety protection law, such an effect of the exclusive license is proclaimed. The effect of the simple license, on the other hand , is assessed differently via the individual protective laws . The concept of "thinginess" is taken from property law and is at least imprecise in that it is only used there if the reference object of the law is a matter i. S. d. BGB is. This dispute also extends to other areas of law . So it is considered whether the exclusive licensee of third party objectors i. S. d. ZPO , or persons entitled to segregation i. S. d. InsO is. This is followed by questions as to whether an exclusive license is freely transferable as an independent right. In copyright law, a right of use can only be transferred with the consent of the author ( (1) UrhG ). If the author transfers his exclusive rights of use to a third party and does not reserve any rights of use for himself, the licensee may be. U. entitled to use the work to the exclusion of all other persons - including the author himself. Furthermore, the licensee would be entitled to grant simple rights of use, whereby the consent of the author is required ( (3) UrhG).
According to the doctrine of transfer of purpose , only those rights are left for use that are necessary to achieve the respective contractual purpose. The principle comes from copyright law.
Statutory licenses limit the licensor's right to restrict the use of the work by law. The licensor cannot use this to defend itself against legal use.
An example of this is the private copy : It is based on the legally granted license according to UrhG to make reproductions for private and other personal use. The private copy is not free, but is compensated by copyright levies that are collected by collecting societies such as GEMA and distributed to the licensor.
The justification for the right to private copying and the collective exploitation via collecting societies results primarily from the impossibility for the author to enforce his rights in the private sphere.
Although the license has now found legal recognition in all areas of law, there is no legal definition or statements about the license agreement. In its comprehensive meaning, the license is any authorization for the commercial use of intellectual property . The license agreement between the licensor ( holder of rights ) and the licensee is usually a continuing obligation and includes, as main performance obligations, the transfer of rights by the licensor and, in return, the license fees to be paid by the licensee. The transfer of rights does not take place by assigning them to the licensee, but rather by granting a right of use . As a result, ownership of the right remains with the licensor, while the licensee receives a right of use comparable to the lease . The license fees ( English royalties ) are mostly based on license-related sales and, in accordance with Article 12, Paragraph 2 of the OECD Model Convention, are operating expenses for rights or assets, to which the various types of artistic or literary copyrights and certain types of commercial property rights as well as fees for the transfer industrial , commercial or scientific experience.
A license agreement is a type of contract that is not specifically regulated in the German Civil Code (BGB). It is therefore classified as a contract of its own type ( contract sui generis ). Through the contract , the right holder of a protected right grants the licensee a defined right of use. Licenses are mainly issued for the use of patents , utility models , trademarks , know-how or software . The key points of a license agreement are the description of the licensed object, the definition of the market segment or market region released for use , the term , the fee and, if applicable, contractual penalties. The fee is often regulated in the form of a down payment at the beginning and an ongoing fee depending on the economic success or benefit. The franchise agreement is similar to the license agreement , but the latter is based on a different legal basis.
Typical licensing agreements, for example, include the under license in car and aircraft . The licensee is given copies of the construction plans and the licensor often helps the licensee to start production.
In the publishing sector, license agreements regulate the use of copyrights . Such license agreements are usually concluded between the independent author and a publisher or between two publishers (e.g. for translation versions). An author can also offer several licenses to choose from. One then speaks of multiple licensing (see dual license system ).
It is rather unusual for private individuals to be granted rights by means of a license agreement. The licenses that are used with free software are an exception . With these, everyone is offered a license. The licenses of free software and licensed software have in common that they represent general terms and conditions in the sense of the German Civil Code . To become legally binding, GTC must be effectively incorporated into the contract between the licensee and the licensor, unless the software is individually manufactured.
No license is required to simply run a program in a non-public setting, as this is not prohibited. A copyright license, i.e. a copyright usage / exploitation permit, is only required for copyrighted computer programs if a copyright-relevant use / exploitation act takes place that is not already covered by the legal license anchored in(1) UrhG. This is regularly denied or denied, especially from the camp of the large software manufacturers, and attempts are also made to make the running of a computer program appear as an act of exploitation under copyright law. What is ignored here, however, is that not every technical copying process, as it definitely occurs many thousands of times when a computer program is run within a computer, also involves copying in accordance with copyright law. S. d. UrhG. Basically not because a purely computer-internal copying process does not lead to a further (additional) copy of the work that would enable additional use of the work - such as when making a copy of the program CD / DVD or installing the software on another / Another computer is the case - but does not change the fact that viewed from the outside, the computer is only a single copy of the software installed on it. However, it also follows from this that, for example, the run of software that has been obtained / started from a central server or a WAN (ASP) must be assessed differently insofar as the respectively copied program parts have the character of a work.
Another case is that a work is not protected by copyright. In this case a license is not required for any type of use. A work is then not copyrighted ( " public domain ," "in the public domain") if it has not expired protectable or its term of protection. In some legal systems, authors can also revoke copyright protection by means of a declaration of intent. According to German law , this is not possible; However, such a declaration of intent is interpreted in the case law as a correspondingly far-reaching licensing.
Free software and open source
In the case of free and open source software, simple usage rights are granted to everyone at a flat rate. The licensee's consent is usually signaled by the fact that he is exercising the rights granted by the free license that go beyond generally granted rights, such as the right to quote. If the rights holder does not ask for anything in return, the license can be short and simple. A well-known example is: “ Do what the fuck you want to. “- a little informal, but legally valid. In the opinion of the GNU project , however, it is problematic with such licenses that changed versions of the computer programs are not automatically licensed to everyone in the same liberal manner under current law.
The GNU General Public License therefore tries to preserve the freedoms for the user and demands a "consideration" for the rights granted:
- That the program is not only passed on in its machine language translated form, also called binary , but only together with a version that is understandable for humans, the source code .
- That changed versions can only be distributed if they are also placed under the GPL. Those who do not adhere to them lose their rights again.
This procedure is called copyleft .
The problem with copyleft in this form is that two different copyleft licenses can possibly be incompatible with one another. This means that two plants cannot be combined into one under different copyleft licenses. The GPL, in particular, is incompatible with many other software licenses because it has a strong copyleft. There is also a risk of incompatibility for other free content, such as literature ( GFDL ) and free music (GPL-SFA). The Creative Commons licenses try to counteract this problem.
During the installation of proprietary software are often contracts (since the mid-1990s End User License Agreement , Eng .: End User License Agreement (EULA) ) you have to confirm the user to proceed with the installation to. However, these "contracts" are only valid to a limited extent in Europe and many other parts of the world and are only called "licenses", for two reasons:
- The EULAs usually do not allow anything that is not already allowed, for example to use the program. Without consideration, the “licensee” should impose any kind of obligation. This contradicts the basic structure of a contract.
- Furthermore, it cannot be assumed that the user really agrees to the contract. Clicking a button to legitimately continue the installation on your own computer cannot be equated with an assumption (it is said: from the point of view of an objective third party instead of the manufacturer of the software, clicking has no explanatory content, because you cannot assume it someone wants to conclude a contract so that they are allowed to do what they are already allowed to do). For this reason, it is becoming increasingly common to only activate the button when the text field in which the EULA is contained has been read through, i.e. the section has been moved all the way down. But even this does not solve the problem, as the section can also be moved without reading the content.
State granted special rights
Licenses serve the state to regulate certain branches of the economy. They are either socially sensitive ( e.g. gambling , job placement, media) or higher-level technical coordination is required. Often it is also a combination of both reasons, since the legitimation of technical coordination is used by the state as an opportunity to control an area politically (cf. for example the need to coordinate the transmission frequencies of radio programs and political efforts on radio programs - for example via the Selection of the operator - to influence). The state generally attaches compliance with certain license conditions to the granting of licenses, such as technical standards, a certain degree of transparency, qualitative and quantitative minimum or maximum scope of a business activity, but also the payment of a fee for the use of the license . If the license holder does not adhere to these conditions, compliance with which is controlled by state authorities , he is threatened with license withdrawal .
The assessment of which social areas are sensitive changes with social development. The tendency to suppress state influence and the worldwide economic liberalization since the 1980s also has an impact on the granting of special state rights: license conditions are relaxed, the numerical restrictions on licenses are increased or completely lifted, legal claims for the acquisition of state licenses are granted or the The need to acquire a state license is even completely eliminated.
Licenses also serve to protect state monopolies (e.g. tobacco monopoly, postal monopoly).
The trade in agricultural products between the European Union and third countries is also subject to licensing, depending on the product. These are issued by the market regulation authorities of the EU member states responsible for implementation . They are not identical to import and export permits .
Statutory State Licenses
The license for commercial banking or financial services is called a banking license and is issued by the BAFin banking supervisory authority in accordance with (1) KWG . The trade regulations (GewO) provide in § ff. GewO for some branches of industry that require “a license from the competent authority ”. These include private hospitals and (Section 30 GewO), exhibition of people ( GewO), installation of play equipment with the possibility of profit ( GewO), gaming halls ( GewO), pawn shops ( GewO), security services ( industrial Code), auctioneer Commercial ( GewO) Agents / developers / Baubetreuer ( GewO), intermediaries ( GewO), insurance adviser ( GewO), financial investment brokers ( industrial Code) or real estate loan intermediary ( GewO).
Anyone wishing to operate a restaurant business requires a restaurant license ( GastG ), provided that non- alcoholic drinks , free samples, prepared meals or drinks and prepared meals in connection with an accommodation facility are not served to house guests.
Special state rights dominate the media sector in particular. While newspaper licenses are no longer required today, a license is still required to broadcast radio or television programs . While the reason for asking for press licenses was the better controllability of these media, a major reason for asking for radio and television licenses ( broadcasting licenses ) is the scarce resources: the limited number of frequencies can only be sent to a limited number of program organizers forgive.
According to Section 20 of the State Broadcasting Treaty (RStV), private operators of broadcasting corporations (radio and television) in Germany require a license (license) which is issued by the state media authorities . According to § 25 RStV, the broadcasters have to "essentially express the diversity of opinions in terms of content". This means that all “significant political, ideological and social forces and groups must have their say in the full programs; Perceptions of minorities must be taken into account ”. This does not apply to special interest programs .
When issuing a license, attention is paid to the power of opinion that a broadcaster achieves. According to § 26 RStV, television companies are not allowed to reach more than 30% audience share with all their channels or programs . No further licenses may be issued above this quota.
The approval of the radio and television stations by the state media authorities depends on whether the transmission frequencies are free. The free frequencies are advertised.
The criteria for approval under broadcasting law are divided into personal and factual requirements: In Lower Saxony, for example, the personal requirements include that the broadcaster is not dependent on a political party or that interested private individuals are not members of a state parliament or the Bundestag as representatives of the people. Many state media laws stipulate that a license is not granted if a political party has even an indirect interest in an applicant. CDU-led state governments want to rule out that newspaper publishers participate in radio stations in which the SPD has a minority interest (see SPD newspaper ownership ). The objective requirement for a license applicant is that he is assessed economically and organizationally as being able to carry out the program corresponding to the application documents.
If, as is the rule, several applicants have applied, the Lower Saxony State Media Authority (NLM) makes a selection based on which of the applicants “will probably offer the greatest variety of opinions in the program”. Another decisive factor is the extent to which information, education, advice and entertainment are to be offered in the program, to what extent there is reporting from the federal state issuing the license, and the extent to which the program is produced in this state.
The license can be withdrawn in Lower Saxony, for example, if the program goes against human dignity , “the moral, religious and ideological convictions of others”, “togetherness in a united Germany and international understanding”, as well as peace , social justice , the integration of foreign residents and minorities violates (Section 13 (3) and Section 14 of the Lower Saxony Media Act). Other federal states have similar regulations.
In most countries, the state - similar to broadcasting - has sovereignty over the allocation of frequency bands . For this reason, mobile communications companies have to acquire state mobile communications licenses to operate mobile communications. An example of this is the auction of UMTS licenses for operating the network on certain frequencies, which in August 2000 brought in double-digit billions in Germany.
Newspaper license / licensed newspaper
Of the good four centuries that have passed since the first newspaper was published in Strasbourg in 1605, only a blink of an eye during the 1848 revolution , 15 years in the Weimar Republic and the period after 1949 (or 1989 in East Germany) were through more or less less complete freedom of the press . In all other periods, the content was not only censored in different ways, but the freedom of the publishing industry was restricted by means of bond obligations , concession requirements , granting of trade privileges or special “stamp taxes” . These restrictions included the obligation to obtain a state license (" privilege " in earlier centuries ) before publishing a newspaper .
A license newspaper in this sense is a newspaper that the necessary in Germany to 1945 to 1949 Release approval of the military government decreed. Without this license, no newspaper was allowed to appear until the general license / freedom of the press was issued . For East German newspaper publishers , this state approval was a prerequisite for the publication of a newspaper until the turn of 1989.
By making the publication of a newspaper dependent on a special license, state rule gains control over the group of people (publishers) who are allowed to publish newspapers. Unwelcome people can be excluded. In addition, the number of different newspapers can be limited. If the license conditions are violated, a license can be withdrawn, which also means the possibility of checking the content.
Import and export licenses
In Germany, BAFA is responsible for issuing export permits for certain goods ( (2 ) AWG ). In some countries (such as Switzerland ) an import permit is required for certain goods. The free international trade in goods is restricted by such regulations in order to ensure state control (for example in the arms trade ).
The most important non-governmental license in professional football is the mandatory contractual entitlement to participate in games in the Bundesliga and 2nd Bundesliga ( player permit ). After submission of extensive licensing documents by the clubs and approval by the German Football League as the licensor, the latter concludes a contract with each club (licensee) that guarantees participation in the game, is only valid for one season and is called a " license ". Further licensees are the contract players , whose license to play is also known colloquially as a license.
Licenses in the publishing industry
License trading plays an important role in the publishing industry . Licenses concern the foreign trade of a publisher. In a publishing house, the legal department is usually responsible for licenses, where a license agreement is concluded between the licensor (e.g. the author) and a licensee. Normally, a license is limited to a certain number of copies. Usually literary agents deal with it at book fairs , where statistics and accompanying translations are intercultural indicators. In license sales from 1997 to 2004, Chinese or Korean were at the top; Overtaken in 2005 by Poland (8.1% of all licenses) and 7.4% in Czech . German books for children and young people make up 24% of all license sales, and there is also great demand for guides and books on life support (22%).
The term license also includes official authorizations to operate or repair aircraft, such as the license for commercial pilots or the AML (Aircraft Maintenance License) for aircraft mechanics . The term is also used frequently in common parlance, e.g. B. in the " license to kill " of the fictional agent James Bond .
The associated verb license means "to grant a license". Colloquially, but also in the purchase and apply for a license by license terms, "to license software" for example, in the phrase (meaning: "a software license can be"). Licensing (or the verb to license ) is to be understood in official language from the point of view of the licensor, in the IT field also from the point of view of the licensee (“license a program”).
- Sebastian Wündisch, Stephan Bauer: Patent Cross License Agreements - Terra incognita? In: Commercial legal protection and copyright - International Part Vol. 59, Issue 8–9 (2010), pp. 641–649
- Model of a license agreement for the licensing of property rights (patent, utility model) ( MS Word ; 59 kB)
- Louis Pahlow, License and License Agreement in the Law of Intellectual Property , 2006, p. 184
- Rudolf Jung / Paul Kaegbein, Dissertations in Science and Libraries , 1979, p. 14
- Alexander Kluge, Die Universitäts-Selbstverwaltung , 1958, p. 172
- Sebastian Baur, Von vier Höllenrichtern… , 2009, p. 51 f.
- John W. Baldwin, The Government of Philip Augustus (1991, p. 254)
- Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 255
- Louis Pahlow, License and License Agreement in the Law of Intellectual Property , 2006, p. 32
- Louis Pahlow, License and License Agreement in the Law of Intellectual Property , 2006, p. 183
- Rudolf Klostermann, Patentrecht , in: Wilhelm Kisch (Ed.), Handbuch des Deutschen Patentrechts, 1923, p. 329
- RGZ 75, 400, 402
- BGHZ 62, 272, 276 f.
- Louis Pahlow, License and License Agreement in the Law of Intellectual Property , 2006, p. 181
- Louis Pahlow, License and License Agreement in Intellectual Property Law , 2006, p. 187
- Klaus Henselmann / Lutz Schmidt, Gabler Kompakt-Lexikon Internationales Steuerrecht , 2003, p. 109
- König: The computer program in law , Cologne 1991.
- Information from the Federal Office for Agriculture and Food on import and export licenses ( Memento from June 21, 2009 in the Internet Archive ).
- Regulation (EC) No. 376/2008 of the Commission of April 23, 2008 (PDF) .
- Internet Archive, Wayback Machine, NLM approval ( Memento from January 6, 2006 in the Internet Archive )
- Axel Kannenberg: Broadcasting license: Landesmedienanstalt Bayern prohibits "Drachenlord" live stream. In: heise online , March 28, 2019, accessed on April 5, 2019.
- Börsenblatt Online, May 22, 2006.
- Julian von Heyl / Christian Stang, Duden Praxis compact - Stolpersteine der spelling , 2011, p. 17