Freedom of panorama
The freedom of panorama (also freedom of street images ) is a restriction of copyright provided in many legal systems , which enables everyone to reproduce works that are protected by copyright , for example buildings, art in construction or art in public space , which can be seen from public traffic routes without that for this the author of the work must be asked for permission. In the vast majority of copyright regulations, this basic exemption is also designed through specific restrictions in order not to overburden the author in his legal position.
Regardless of copyright, other legal aspects may also conflict with pictorial reproduction or its exploitation, for example property rights, house rights , personal rights of the residents of a building or state security considerations (e.g. in the case of military installations). These are usually not affected by the freedom of panorama or only to a limited extent.
National differences
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Although there is a regulation of panoramic freedom in many countries of the world (see also the adjacent map for Europe), the scope of the regulations sometimes differ considerably.
Often only very precisely named types of work are included or excluded (example: Austria, where the exception only applies to works of architecture and the visual arts), while other countries have no restriction to individual types of work (example: Germany). In some cases, the type of use is restricted, for example by means of a ban on commercial use (example: Slovenia, Bulgaria) or a restriction of the exemption to those uses where the work shown is not the central motif (example: Finland). The respective regulations also differ with regard to the concept of publicity used. Some legislators only want works outdoors, but not indoors (example: Iceland), while in other countries, to a certain extent, works indoors also come under the exemption (example: Austria). The feature of freedom from remuneration is not constitutive for freedom from panorama according to the definition on which this article is based; Although the vast majority of states allow free use with such a regulation, in isolated cases at least commercial use is linked to an obligation to pay (example: Iceland, with restrictions).
Germany
standard
Relevant is the law on copyright and related rights (UrhG):
Legal development
The current regulation on freedom of panorama has remained unchanged since the copyright law came into force on January 1, 1966.
German and North German Confederation
The derogation has its origins in Germany as early as the 19th century. After the federal resolution against reprinting was passed by the Federal Assembly at the level of the German Confederation in 1837 , some member states provided for a barrier provision comparable to freedom of panorama in their respective legal implementations - well before the first general German copyright regulation in 1870 or 1876. For example, the Bavarian Law , which came into force in 1840, regulates the protection of property in literature and art against reprinting. that “works of architecture in their outer outlines” and “monuments erected in public places” are excluded from the central copyright protection norm. A similar provision also existed in the Duchy of Braunschweig . In contrast, Prussia, which played a pioneering role in German copyright law at the time, had no equivalent protection exception in its law of 1837.
The Börsenverein des Deutschen Buchhandels , which pushed for the harmonization of the particular laws, also provided for an exemption from images of the street scene in its draft for an all-German copyright law published in 1857. The proposal was presented by Saxony to the Federal Assembly in 1862 . The exception provision of the freedom of panorama survived, in a modified form, the legislative process and was also provided for in Section 33 of the revised draft that the expert commission established in 1864 - the so-called Frankfurt draft (after the meeting place of the commission). The content of this was that "the replica of public monuments that are permanently erected on streets or public places [...] will not be treated as reprints." Due to the general political situation, however, the federal legislative project ultimately failed entirely. In 1865 Bavaria at least adopted a large part of the Frankfurt design; the regulation for the freedom of the streets was adopted with identical wording.
In the North German Confederation founded in 1867, a uniform imperial copyright law was passed in 1870; However, its final version - unlike both draft versions - did not from the outset refer to buildings and works of the visual arts, so that the final law also did not contain any regulation on freedom of panorama. According to the first draft by Friedrich Kühns and Ludwig E. Heydemann, the "replica of a work of art that is set up on public streets or squares" should not be viewed as a prohibited replica, whereby it was expressly provided that when a work is publicly displayed without consent the author or his legal successor would give rise to a claim for compensation against the operator. The revised draft by Otto Dambach excluded the replication “of works of plastic art that are permanently installed on streets or public places” from the general prohibition of replication, provided that the replication is not “in plastic form”. In this version, the provision was then submitted to the Reichstag; the reason given was that publicly exhibited sculptural works were used to "be viewed as common property", but that reproducibility in plastic form would damage both reputation and financial losses for the artist. The commission set up by the Reichstag subsequently also left this version unchanged, although it opposed an amendment to extend the provision to works in public collections. The plastic replication of works of plastic art, on the other hand, should not be privileged “for artistic as well as financial reasons”. Only in the plenary was it finally decided to delete all provisions on the protection of works of art.
German Empire
- The Art Protection Act of 1876
In 1871 the North German Confederation became part of the German Empire . In 1875, the Reichstag dealt with a government draft for a law on copyright in works of the fine arts (hereinafter: Art Protection Act), whose regulation on freedom of panorama corresponded to that of the draft commission of the Reichstag in the North German Confederation. According to the wording of the justification, plastic replicas should not count among the permitted uses of the work because, on the one hand, poor replicas endanger the "reputation of the artist", and on the other hand, because the free replicability is disadvantageous for artists. Calls for an extension of the exemption clause to all works of the visual arts - buildings were still excluded from the scope of application (§ 3) - and for the reproduction in the same art form as the original to be prohibited instead of reproduction in plastic form, the government rejected on the grounds On the one hand, this is too extensive, on the other hand, changing the restriction away from the prohibition of “reproduction in plastic form” would create an undesirable “complexity” of the standard. The commission set up by the Reichstag kept the regulation on freedom of panorama in its revised version of the government draft unchanged. In the course of the parliamentary debate, two amendments led to an amendment to this Commission proposal:
On the one hand , the proposal, rejected by the Commission, was taken up to extend the freedom of panorama to all works of the fine arts, provided that the reproduction is not made in the same art form. The applicants justified this with the fact that the distinction between works of plastic and those "of the drawing and painting art" was incomprehensible, because "in general, every work of art that is on the public street or in public places has already become common property of the public through its installation" be it, if one wants to accept this principle, there is no reason to differentiate between individual types of work. On the other hand , in the course of the meeting, the motion was tabled to change the wording “which are permanently set up on streets or public places” to “which are permanently located on or at streets or public places”. As a justification, the applicants firstly also cited dogmatic reasons, according to which there was no reason to distinguish between erectable and other work embodiments, and secondly, practical difficulties. According to the Commission's draft, sgraffiti on house walls or on monuments should not also be depicted, which would lead to difficulties in reproducing the respective buildings.
Both proposals were accepted with a narrow majority. The law of January 9, 1876 finally came into force with the following wording on the freedom of streetscape:
- The KUG from 1907
The Art Protection Act and the almost simultaneously passed law on the protection of photographs against unauthorized reproduction (PhotoschutzG), with which photographs were granted (less) protection, were subjected to a wide range of criticism towards the end of the 19th century. In 1902 the government published a draft for a reformed Photo Protection Act which, in Section 15, exempted the reproduction of works that were left on public streets or squares “by reproducing their external view in images”. The reasoning explains that a departure from the principle of freedom from the streets is not intended, especially since this also corresponds to “a healthy sense of justice” and the existence of many small traders depends on it. The justification explicitly deals with a suggestion that only the reproduction of the street scene, but not the reproduction of the work itself should be privileged, but rejects this because, on the one hand, the work often significantly determines the street scene and, as a result, delimitation problems would arise and, on the other hand, often that in practice The work is the focus of the reproduction (e.g. on a postcard). A deviation from § 6 No. 3 Art Protection Act is that the restriction that the reproduction may not be made “in the same art form” has been replaced by an alternative formulation because the other version “caused difficulties in terms of interpretation”. The draft formulation should clarify that "inner [e] parts of a work" (such as the interior design) do not fall under the limitation regulation and at the same time - through the term "visual representation" - that non-plastic works such as frescoes and sgraffiti may not be attached to other structures without approval. Finally, the justification rejects the demand to link the freedom of panorama to the naming of the artist (“subject to concerns”).
The draft standard for freedom from street scenes was received differently in the literature; some commentators - as well as many representatives of artists' interests - considered it to go too far and even suggested that it be deleted completely, while others welcomed it. In 1904, the Reich government decided to unite the protection of art and photography in one law - the law on copyright in works of the fine arts and photography (KUG) - and presented a new government draft that was included in the legislative initiative of November 28, 1905 flowed. Unlike the KunstschG, this also included architectural works. A regulation on freedom of panorama was also included. After the first reading, a commission was again deployed; However, this did not make any significant changes to the regulation on freedom of streets, so that this came into force in almost identical form after a positive decision by the Reichstag on July 7, 1907:
In addition to the initial justification, the government had previously stated that fears that inferior images could harm the artist were unfounded insofar as buildings in particular “mostly do not serve artistic purposes but are intended for other purposes, for example patriotic and similar purposes”. The sentence “In the case of buildings, the right to reproduce only extends to the external view”, which was added compared to the first draft, was only intended to serve clarification and was not motivated by any new considerations. The reason for not having to give a name has been changed compared to the first draft: The government now argued that the name of the author was not given on the main structures in question anyway, and that an obligation to inquire could “not be imposed on traffic”. A request during the commission's deliberations to at least request the name of the author if the author's information is directly visible on the workpiece was initially accepted, but deleted again in the second reading after practical difficulties were pointed out. For example, it is hardly possible to recognize an indication of the author on a ledge, and when reproducing several works by different authors, such a provision is "not feasible for external reasons". The only change to the rule that the Commission accepted was the addition of “ways” in the list in the first sentence for the sake of clarity. An application to restrict the freedom of panorama by not allowing the reproduction of individual works was rejected.
GDR
In the German Democratic Republic, the KUG continued to regulate the copyright situation until the end of 1965, so that the provision there for freedom from street scenes remained applicable. In the law on copyright of September 13, 1965 (GDR-URG), which came into force on January 1, 1966, at the same time as the FRG's copyright law (in detail below ), a slightly modified version of the freedom of street images was then adapted. According to § 25 GDR-URG "the reproduction of works that are permanently located on public roads, streets or squares, by painting or drawing art or by photography" was permissible, whereby this authorization is "[b] ei works of architecture [... ] [extends] only to the external view ”. There was no restriction regarding the reproduction of a building (unlike in the KUG and the copyright law of the FRG).
The GDR-URG expired on October 3, 1990 and was replaced by the Copyright Act of the FRG ( Annex I, Chapter III E. II, Section 8 of the Unification Treaty [EV]).
Federal Republic
In 1962, the federal government submitted a draft for a copyright law (UrhG) that contained a new version of the barriers to the KUG. According to this, it should be permissible “to reproduce, distribute and publicly reproduce works that are permanently located on public roads, streets or squares by means of painting or graphics, by photography or film, and to broadcast such works on television. In the case of buildings, these powers only extend to the external appearance [...] Reproductions may not be made on a building. ”The reason given was that this version roughly corresponds to the previous regulation, but was expanded to include the option of radio transmission. An obligation to pay remuneration was rejected with reference to the fact that the exception was based on the dedication to the general public, which was made by the exhibition in public places, so that the free depiction and usability of the images corresponded to the purpose of the standard. Just as in the German Empire and the North German Confederation, the proposal to extend the provision to include works of art permanently displayed in public museums was rejected; These are namely "not dedicated to the general public to the same extent as the works that are displayed in public places". It is also difficult to determine in individual cases whether such a work of art is on permanent display. Following an objection from the Federal Council, the Federal Government modified its draft to the effect that it deleted the passage “and broadcasting such works on television” again. The Legal Committee, which was brought in during the deliberations, agreed with this amended version. There was no further discussion of this in the Bundestag and finally the adoption of the provision in the committee version.
When the UrhG was adapted to Directive 2001/29 / EC (see the section " Union and Convention Law "), Section 59 UrhG remained unchanged because the structure of the provision is kept open insofar as it - unlike the Austrian parallel provision - refers quite generally to communication to the public instead of naming specific forms of exploitation. The inclusion of the form of exploitation of making publicly available ( § 19a UrhG) in § 15 UrhG made it unnecessary to change § 59 UrhG again. The current version corresponds to the original version from 1965.
justification
After the official justification of the draft law on the UrhG, § 59 UrhG follows the consideration that "the installation of a work of art in public places expresses that the work is thus dedicated to the general public." This then justifies a "restriction of copyright in this way." that everyone can depict the work and use the images ”. In the opinion of the Federal Court of Justice, this corresponds to the idea that the author who consents to the installation or erection of his work in a public place, “dedicates his work to the general public to a certain extent”.
This dedication was followed - as shown - by the reasons for the forerunner regulations well into the 19th century. It is countered by parts of the literature that freedom of panorama also includes workpieces that are brought into public space without the consent of the author or rights holder (see in detail the section " Relationship to property rights and other rights "); because control over the workpiece does not necessarily lie with the author, but with the owner, so that interference in the author's rights cannot be based on his will. Instead, these authors tend to advocate basing the freedom of panorama on the interest of the general public in a depiction of public space that is as free as possible, taking into account the interests of the author.
Design standard
According to the jurisprudence of the Federal Court of Justice, the restriction on freedom of panorama is fundamentally to be interpreted narrowly and analogous application is only available in rare exceptional cases. However, it is recognized - for the general barriers, but also for the freedom of panorama in particular - that in individual cases an interest of the exploiter that is particularly worthy of protection can lead to a more generous standard being applied in the interpretation.
Recorded works
Work types
Section 59 UrhG can refer to works of any kind as long as they can only be reproduced by means of painting or graphics, photographs or film. In practice, the greatest areas of application of the exception provision are works of fine art and architecture ( Section 2, Paragraph 2, No. 4). Common examples are churches, residential buildings or castles, statues, fountains and frescoes attached to buildings. However, other types of work are also conceivable. Speech or music can be found on memorial plaques or tombs attached to buildings and - if the other requirements are met - become part of the street scene within the meaning of Section 59 UrhG. However, only reproduction in the specific form of representation (e.g. by taking photos of the plaque) is covered by the freedom of panorama, but not, for example, a copy made with a typewriter.
"Public" criterion
("Fairytale Princess", designed by Karin Bohrmann-Roth; gardens of the Brothers Grimm Museum Kassel , Schöne Aussicht 2)
(designed by Feliks Büttner ; taken when entering Funchal, Madeira)
The freedom of panorama is subject to the reproduction of works if they are located on public paths, streets or squares. Despite the wording, this list is, according to recent case law of the Federal Court of Justice, only an example and should not be understood as conclusive, which in any case results from an interpretation of the provision in accordance with the directive. After that, it just depends on whether the work is in a “public place”. The public places also include the high seas , the territorial sea , sea waterways and seaports .
The publicity criterion refers to where the work is recorded or displayed from - it is therefore not decisive whether the work itself is publicly accessible; it can also be located on inaccessible private property. In the past, it was at times controversial whether the freedom of panorama for a work located on a public roadside privileged the representation from any angle or whether instead only those views are included that reproduce the view from the public place. The Federal Court of Justice ruled this question in 2003 in favor of the latter position. According to § 59 UrhG, only those recordings and representations that have been made from the public place where the work is located and that reflect the view from the public place as it is available to the general public are covered. In practice, this may lead to a problem of proof. Since the person who invokes them is always subject to the burden of presentation and evidence for the requirements of a limitation regulation , a photographer, for example, is sometimes faced with a not inconsiderable difficulty if his image had theoretically taken from both a public and a non-public place can be. The jurisprudence counteracts this by making it easier to provide evidence: whenever the image shows the work as it can be perceived from a public place, there is an actual assumption that the recording was actually made from such a place. The owner of the rights to the work depicted must then present specific circumstances in order to shake this assumption. Only when he succeeds does the photographer still have to meet his burden of proof.
According to the prevailing opinion , the privilege is inaccessible to perspectives that only open up through the use of aids such as ladders, airplanes, helicopters or drones or by pushing away or drilling through hedges. According to the prevailing opinion, the same should also apply to views that were created with the aid of binoculars or telephoto lenses. The Federal Court of Justice accordingly denied the applicability of § 59 UrhG for the inclusion of a copyrighted building from the balcony of a house opposite (to which everyone received a key on request) because it "shows parts of the building from the path, the street or cannot be seen from the square ”. Whether against this background a camera installation on the roof of a vehicle, which records the street image from 2.90 meters high ( Google Street View vehicles ), still reproduces the view from the public street or the public square and in this respect the privilege from § 59 UrhG is discussed controversially in the literature, but mostly denied.
The concept of "public" roads, streets and squares is not public law to understand, but aims at effective access for the general public. The general literary opinion calls for a dedication for common use, which can also exist if the street or the square is privately owned. According to the prevailing opinion, the necessary dedication does not exist if private property is protected from unhindered access by controls or even the collection of entrance fees. The fact that the street or the square is temporarily closed, in particular overnight, does not, however, preclude their dedication for public use and, in this respect, the applicability of § 59 UrhG according to general opinion. As an illustration, the literature regularly refers to the example of a cemetery whose gates are locked in the evening hours.
According to the unanimous opinion of the literature, recordings and representations of works in interiors also of public buildings such as museums, public collections, churches or authorities are not covered by the limitation determination. This corresponds to the explicit consideration in the official justification that “works of art permanently exhibited in public museums” should not be privileged because they “are not dedicated to the general public to the same extent as works that are exhibited in public places. “(For the representation of the interiors themselves, Section 59, Paragraph 1, Sentence 2 UrhG must also be observed.) Against this background, the Cologne Higher Regional Court denied the applicability of the freedom of panorama to the representation of a work of art in the plenary hall of the German Bundestag in Bonn. The evaluation of recordings in locations such as train stations or airport halls and underground stations is controversial; those commentators who want to exclude them from panoramic freedom essentially point out that such locations are not dedicated to the public in the same way. The application of § 59 UrhG to publicly accessible atriums and passageways is also controversial . According to the case law of the Federal Court of Justice, it is not necessary that a work is located in one and the same place, i.e. that it is stationary. It can also be located in different public locations one after the other, such as a copyrighted vehicle or a work of art attached to a ship. In the opinion of the Federal Court of Justice, this should also apply to protected advertising displays on trams, buses or trucks, as these are used as intended in public road traffic.
An analogous application of § 59 UrhG to works that are made publicly accessible on the Internet and that are thus, to a certain extent, in the "virtual public" is ruled out.
"Lasting" criterion
("Homage to the young generation", designed by Thierry Noir )
For the privilege according to § 59 UrhG it is also necessary that the work is permanently located on a public path, a public street or a public square. In its decision on the Veiled Reichstag , the Federal Court of Justice interpreted this criterion to mean that it depends on whether the installation or erection of the protected work in a public place with the consent of the authorized person serves to present the work in the sense of an exhibition or not. In doing so, he did not unreservedly endorse the view that has hitherto been predominantly represented in the literature, according to which the dedication by the person entitled to dispose (i.e. his will to display the work permanently instead of only temporarily in the public area) should be taken into account, since it is based solely on the subjective Determination of the person entitled to protect himself against the privileged use of his work according to § 59 UrhG by means of a corresponding declaration of intent. The Federal Court of Justice does not want a “work presentation in the sense of an exhibition” to be understood as a permanent exhibition, but rather a temporary exhibition whose duration is “usually measured in weeks and months, not in years”. In a more recent decision from 2017, the Federal Court of Justice considered the permanent character to be fulfilled if the work “from the point of view of the general public is intended to remain in the public place for a longer, mostly indefinite period of time”.
In the case law of the Federal Court of Justice, for example, works of art on a section of the Berlin Wall were rated as permanent if they were there “for the duration of their existence” ( East Side Gallery ) . A work of art applied to a cruise ship is also “permanent” in a public place (see illustration) because it is intended to be in (different) public places with the ship for a longer period of time. In the opinion of the Cologne Higher Regional Court, a work of art that has been installed on a high-rise roof in the same public place for five years (see illustration) is in any case permanently there, so that recordings from the street can be used without permission. In the opinion of the Frankenthal Regional Court, the same also applies to a work conceived as a “work in progress” and set up in a park for several years, which, due to the criterion of the objectively identifiable purpose of the installation, does not change anything because it is shortly before the oral hearing is dismantled.
Literature wants to affirm a permanent character at least in those cases in which a work remains in one place for the duration of its natural (material-related) existence. According to the prevailing opinion, works with a short natural lifespan (due to consistency), such as snow sculptures and plaster paintings, which soon melt or dissolve in the rain, are accessible to panoramic freedom. The prevailing opinion also subsumes the area of forced art (graffiti) on house walls or the like, which is often painted over again after a short time, but which is nonetheless lacking a temporary purpose because it is left to its fate, so to speak. The other case category consists of works whose installation time is less than the natural lifespan. Fireworks, for example, lie in the border area, which the commentary literature evaluates either as (non-permanent) deliberately short presentations or as (permanent) work presentations whose short duration is simply due to the material properties of the fireworks. The classification of posters and banners on advertising pillars is also controversial . For works that are exhibited behind shop windows and in showcases, the applicability of panoramic freedom is unanimously rejected. If the posters or works in shop windows and boxes for inclusion or presentation are irrelevant and interchangeable as required in relation to the main object of the recording or presentation, they can also be used as insignificant accessories ( Section 57 UrhG).
Demarcation difficulties arise when works are only temporarily set up or erected in public space from the outset and their artistic effect results largely from the interaction with the environment. On the occasion of the Reichstag veiled by Christo and Jeanne-Claude , the Federal Court of Justice decided that in any case it could not matter whether the work of art would perish or persist after it was uninstalled, because this would result in an inadmissible differentiation according to the type of work of art. For example, the covering, made of fabric strips, was in a public place for the entire duration of its existence as a work of art, but in the opinion of the Federal Court of Justice it was not permanently located there because the work was presented in the manner of an exhibition.
In any case, the situation at the time the recording or representation was made must be taken into account; if the workpiece is subsequently removed at any time and, for example, taken to a museum, this does not affect the admissibility of the use of previously legally produced reproductions of works.
Privileged uses
Reproduction, distribution and communication to the public
Section 59 UrhG permits the reproduction, distribution and public reproduction by means of painting or graphics, photographs or film.
Duplication, distribution and communication to the public denote different types of exploitation, with the first two forms of physical exploitation and "communication to the public" being the generic term for all intangible types of exploitation. A memorial is, for example, duplicated ( Section 16 UrhG) if you build it, but also if you take a photo of it and save it electronically or print it out. Distribution ( Section 17 UrhG), on the other hand, takes place, for example, when a building is photographed, printed on a postcard (reproduction) and the resulting reproduction is then publicly offered for sale. Communication to the public ( § 15 para. 2 of the Copyright Act) is finally example, if the picture taken of the panoramic freedom under falling work of art available to the public by setting the Internet ( § 19a of the Copyright Act), or at a public event with a video projector to the wall is thrown and presented in this way ( Section 19 (4) UrhG).
In all cases - even according to the express wording of the official justification - uses for commercial purposes are also privileged. There is also no obligation to pay.
From the list of permitted types of utilization, the general conclusion is that only utilization in two-dimensional - but not in plastic - form is covered by § 59 UrhG. Duplication in three-dimensional form is also not permitted if the work is reproduced as a reduced model or from other materials. The requirement of two-dimensionality is therefore fundamentally opposed to reproduction using so-called 3D printing . A duplication in three-dimensional form that is no longer recorded is assumed in the literature even when producing merely virtual three-dimensional model representations - for example in the form of virtual models of sculptures or as part of a virtual reality . In principle, however, according to the case law of the Federal Court of Justice, there is no reproduction in three-dimensional form if a work is photographed with recourse to the freedom of panorama and then the photograph is glued to a three-dimensional carrier, because the character of the photograph is retained (in the event of a dispute: affixing the photograph a painted wall on the front of an architectural model of the wall). (The application to buildings is, however, restricted by Section 59 (2) UrhG, see below .) This only changes when “between the photograph and the three-dimensional carrier, not only a purely external, physical connection is created, but also one inner, artistic connection is created so that the photograph is not only carried by a three-dimensional object, but merges with it to form a uniform work ”(Example: individual photographing of the six sides of an artistically designed cube in public space and subsequent application of these six photographs a model of the cube).
In some cases, the point of view is that live broadcasts are not covered by the limitation of § 59 UrhG, because the granted right to public reproduction does not relate to the original, but - analogous to the example above - to copies made by the in § 59 para. 1, sentence 1 UrhG have been legitimately created. However, this view is controversial in the literature. The use of a photograph made under the requirements of Section 59 UrhG on the Internet is also covered by the limit. According to the general opinion, the duplication, distribution and public reproduction through "Lichtbild" (§ 72 UrhG) also includes that through photographic works; “Film” is also to be understood as a generic term for film and (simple) moving images .
Restriction in the case of buildings (para. 1, p. 2)
In the case of buildings, only the exterior view is covered by Section 59 UrhG (Section 59 Paragraph 1, Sentence 2). The privilege therefore always relates only to those parts of the building that can be seen from the street or the square, but not to the rear or the inner courtyard of buildings (or even their interiors), which only have their facade on a public Street or a public square. Parts of the interior design, for example, may not be photographically reproduced and then distributed even if they are visible from the street.
No duplication on a building (Paragraph 2)
The reproduction of the work "on a building" is expressly prohibited. A protected monument on the market square may not be represented in wall paintings or stucco decorations on buildings, for example. The underlying reasoning is that it is not the sense and purpose of the freedom of street images that a reproduction of the original work function is used accordingly without paying the author for it. As far as the literature expresses this, an interpretation is often advocated in such a way that only the outside of the building is meant. On the one hand, this would not allow the adoption of a fresco above the house entrance, but on the other hand its copy on the wall in the stairwell of a building would be permitted.
Obligation to indicate the source (§ 63 UrhG)
According to § 63 UrhG, a duty to cite the source applies to the reproduction and public communication within the scope of freedom of panorama , whereby the legislature only requires such a source for communication to the public, unlike in the case of copying, "if and to the extent that it is required by the custom" (§ 63 Paragraph 2 UrhG). When using the images in question on the Internet, the custom will typically not deviate from that in the print area, so there is a source obligation there as well. In an injunction from 2018, the Frankfurt Regional Court prohibited the use of a recording of a work of art in a television film that was generally based on the freedom of panorama, unless the author of the work of art is specified.
The indication of the source always includes the name of the author ( § 13 UrhG), in principle by stating the full name. However, if the author himself has attached a pseudonym or artist name to the workpiece, this must be stated. In principle, according to the widespread opinion, a reference to the source according to Section 63 UrhG also includes the title of the work or another designation that identifies it, provided that such is indicated or attached to the reproduced workpiece; In the context of Section 59 UrhG, however, this is mostly considered to be dispensable in the case of free-standing works of the visual arts and is only required in other cases, for example in the case of architectural works. How far the user's obligation to research the author's name goes is assessed differently. In the case of unsigned works of the fine arts, for example, the overwhelming majority of literature demands that the exploiter seek to find out about the author according to the principles of good faith ; If this fails and the author is not otherwise known to the user, § 63 Para. 1, S. 4 UrhG applies to physical exploitation, so that the obligation to cite the source does not apply.
Change prohibition (§ 62 UrhG)
The Holbein horse in July 2009 ...
... in November 2010 ...
... in November 2011 ...
... and in September 2013.
Section 62 UrhG prohibits making changes to the work used within the framework of the freedom of panorama (Paragraph 1). With regard to the admissibility of changes, a weighing of interests must be carried out (see also Section 39 (2) UrhG). In the case of works of the visual arts and photographic works, transfers of the work to a different size and such changes are permitted that the process used for the reproduction entails (Section 62 (3) UrhG). In connection with § 59 UrhG, this exception also extends to buildings. Against this background, it is permitted, for example, to take photos of a monument that is eligible for the privilege of Section 59 UrhG and then to print it true to scale in a newspaper, even if the monument naturally does not appear there in its original size.
By copying parts of a work, the prohibition of changes is not violated according to the prevailing and meanwhile shared opinion by the highest court. The Federal Court of Justice therefore considered it permissible, for example, to crop the photograph of a mural attached to a wall in such a way that no surrounding context (wall crown and lower shoulder of the wall) was any longer visible, and then to reproduce the cropped photograph. This also applies if essential parts of the work are not copied or a copying of the entire work would have been possible without further ado.
Anyone who photographs the artistically designed lettering “Love your city” permanently attached to a high-rise roof from the street may reproduce and distribute the resulting photo, relying on the freedom of panorama; however, the dissemination of a digitally changed version of the picture on which the color of the lettering or the sky is changed is contrary to the prohibition of changes in § 62 UrhG. Likewise, § 62 UrhG is violated by anyone who photographs a horse sculpture and processes the resulting digital photo before distribution in such a way that the horse now appears in bright red paint and wearing a Santa hat and boots. Distortions are already separately forbidden according to § 14 UrhG. In the event of a dispute, the depicted sculpture - the so-called Freiburger Holbeinpferd by the sculptor Werner Gürtner - was repeatedly painted, provided with lettering, wrapped with packaging material or otherwise changed by strangers without the permission of the rights holder. In the opinion of the Mannheim Regional Court, taking a picture of the sculpture and then using it in this state is permissible as long as the photographer does not (additionally) change it himself. However, this view has often met with rejection in the literature because the inadmissibility does not result from § 62 UrhG, which does not apply to changes by third parties, but from the prohibition of distortion in § 14 UrhG.
Relationship to European Law
§ 59 UrhG is in view of the regulation in Art. 5 Para. 3 lit. h of the InfoSoc guideline (see the section “ Union and Convention Law ”) in accordance with the guidelines. According to the case law of the Federal Court of Justice, the provision basically meets the requirements of Union law. In individual cases with a particular intensity of intervention, concerns about the three-step test are sometimes reported from a German perspective. Vogel , for example, considers cases conceivable in which uses fail in the three-step test because, for example, a work of fine art is the main subject of an illustration. Chirco locates concerns more in the area of perishable works ("action or environmental art"), because the author cannot exploit them financially at all, but only through copies, so that royalty-free use under § 59 UrhG sometimes affects normal work exploitation (2. Level of the three-level test).
Relationship to property rights and other rights
Property and land ownership. Basically, the subject of property ownership differs fundamentally from that of copyright law insofar as itprotectsthe intellectual content expressed in a work, while that grants the right to deal with a thing at will - within the limits of the law and subject to the rights of third parties to proceed and to exclude others from any influence. Based on this, it has been argued that a photographer who photographs a building protected by copyright would impair the owner of the house in his property rights ( Section 1004 BGB), even if the photographer can rely on the freedom of panorama under copyright law. The Federal Court of Justicecountered thisin its Friesenhaus decisionin 1989with the argument that there was no actual effect on property because the photographing process had no effect on the use of the thing itself. Although the Federal Court of Justice, following on from its Schloss-Tegel ruling from 1974, sees the property owner's property rights violated in - much criticized - current case law if the photographer enters his property in order to take pictures, in particular of buildings and gardens that are on it , and then to use these images without authorization, he still maintains that the right of ownership always has to be neglected when a building or a garden is photographed from a public square or a public street with reference to the freedom of panorama. Corresponding recordings can therefore be made and used within the permitted framework of § 59 UrhG regardless of the property right.
Exhibition right. Another problem area concerns the property ownership of unpublished works of art. With the acquisition of an unpublished work of the visual arts or photographic work, the new owner acquires, unless otherwise agreed by the parties, the right to exhibit the respective work ( Section 44 (2) UrhG). On the basis of this, there is apparently nothing to prevent the owner of such an original piece from placing it in public space in such a way that it can be reproduced by third parties with recourse to the freedom of panorama. Some of the literature considers this to be too extensive and takes a narrower interpretation to the effect that the right to permanent display in the sense of freedom of panorama remains with the author and must be specifically granted if the public exhibition is not itself - as is the case with facade art on a public building - is the subject of the transfer of ownership.
Right to your own picture. The freedom of panorama per se relates only to copyright. If, for example, people can also be recognized in a film, the author of which can otherwise rely on the freedom of panorama when reproducing the subject matter, the consent of the person shown is nonetheless required for use ( Section 22 Art Copyright Act [KUG]). The underlying right to one's own image only recognizes a “panorama” exception within the limits of the accessory regulation of Section 23 (1) Case 2 KUG, according to which the use of images on which the people appear only as accessories next to a landscape or other location , does not require consent. See the article " Accessories ".
Design protection. Since the case law assumes that the mere depiction of a registered design in a publication is one of the acts of use under design law ( Section 38 (1) of the Design Act ), the question may arise as to whether design law violates the exploitation of a motif that is subject to panoramic freedom under copyright law can be proceeded that shows a registered design. Because design law does not recognize any barrier regulation comparable to freedom of panorama. Some people advocate applying the freedom of panorama to designs in the same way. However, concerns under European law have been raised against this.
Protection of the photograph (work) s. The freedom of panorama does not affect the copyright protection of a photograph made with reference to it; The fact that a photographer relies on the freedom of panorama for his recording of a work of art and its subsequent use does not affect the copyright or ancillary protection of the photograph.
Discussion of legal policy
Schricker et al. state a need to extend the privilege to exploitation by means of multimedia works (for example in the form of three-dimensional animated movements of the free street scene). Similarly, Poeppel also wants to reduce legal uncertainties in the digital environment; instead of like Schricker et al. However, to extend the list of the individual privileged exploitation techniques, he suggests making § 59 UrhG more flexible by reformulating it. According to his proposed amendment, § 59 UrhG should instead allow "works that are permanently located on public paths, streets or squares to be reproduced, distributed and publicly reproduced by means of painting or graphics, photography or film" new permit the “production, duplication, distribution and public reproduction of images of works that are permanently located on public paths, streets or squares” (emphasis added); this would not place any additional restrictions on the digital use of such images.
In some cases, it is suggested in the literature to make panoramic freedom for commercial use subject to payment. So have about three / Spiecker gen. Döhmann out that in view of the decision of the Federal Constitutional Court of the property according to the textbook privilege an unremunerated restriction Art. 14 protected GG copyright requires a heightened public interest and such in services such as Google Street View or Postcard publishers who make use of the freedom of panorama are doubtful.
The Study Commission "Culture in Germany" beat the German Parliament in 2007 in its final report, the introduction of such payment obligation before. According to the proposal, the depiction of works - with the exception of buildings - in public space should no longer be free of remuneration if the image is commercially exploited and the intention to depict it is aimed at the respective work. The Commission justified this on the one hand with the unequal treatment of artists whose works are located in the public space and those whose works are located inside, and on the other hand with the unequal treatment of the photographer and the author of the artwork shown. It also took up a demand from the German Cultural Council , which has repeatedly spoken out in favor of an obligation to pay remuneration. The Federal Minister of Justice at the time, Brigitte Zypries, wanted to examine a revision of Section 59 of the Copyright Act in response to the inquiry made in this regard. The German Association of Judges supported the Commission's proposal in a statement; the proposal would "meet the requirements of practice" and the necessary distinction between private and commercial use was "affordable". The German Association of Journalists turned against the proposal with the Pro Panorama Freiheit campaign .
For legal and political developments at the level of the European Union, see the section “ European Union ”.
Austria
standard
The Austrian Copyright Act (UrhG) allows
Legal development
Even before the official announcement of the federal decree against reprinting of 1837 in November 1840, Austria concluded a state treaty with Sardinia on May 22, 1840 for mutual protection against reprint , which did not yet contain any regulation similar to freedom of panorama. In 1892 the Austrian government submitted a draft to the manor house for a new law on copyright in works of literature or art and photography . This stipulated in § 32 line 4 that works of the fine arts that are "on or in streets or public places" may be reproduced, "with the exception of the reproduction of works of sculpture through sculpture". According to the explanatory remarks, the provision is "an innovation taken from German and Hungarian law, which corresponds to an actual need, especially since publicly displayed or attached works of art are usually regarded as common property". The prohibition of plastic replication by plastic takes into account "the prevailing artistic wishes"; In addition, reference was made to damage to reputation and loss of income due to (bad) replicas to justify it. In response to corresponding proposals, however, the commission refused to exempt from the limit analogous replications of works of painting or graphic art in the same art form, because this would make it more difficult to distribute mere images. The draft was handed over to the unified judicial and political commission at first reading. Its draft version, which essentially goes back to the rapporteur Adolf Exner , changed the wording of the provision (now to be found in Section 39) to that of the version that was finally adopted later:
In the explanatory remarks to the Commission's draft, the change of the local definition from “on or in streets or public places” to “places serving public transport” was not justified. In the further course of the legislative process, the Commission draft was adopted without amendments or discussions on the provision of freedom from streets.
The amended version of the UrhG of July 13, 1920, announced in an executive order of August 31, 1920, extended the copyright protection to works of architecture. The barriers to freedom of panorama have been reformulated:
The explanatory remarks name and justify two deviations from the previous wording: On the one hand, the legislature wanted to explicitly exclude the reproduction of works of architecture by architecture in order to "not render the protection of the architect ineffective". Furthermore, the reproduction of works of painting or drawing in a place serving public transport has now been explicitly excluded from the privilege. The remarks finally clarify the definition of the place serving public transport in such a way that “streets, squares etc., but not churches, vestibules of theaters or public buildings, juice and coffee shops etc. like. [belong], since they do not serve public transport ”.
A German-Austrian draft of a joint copyright law submitted by the Ministry of Justice in 1932 was ultimately not pursued for political reasons. It provided for a formulation that was similar to that of the German KUG (see above under "Germany"). According to this, "works that are permanently located on public paths, streets or squares, by way of painting, graphics or photography" should be allowed to be reproduced, whereby the reproduction should not have been "attached to a building" and the regulation for buildings only should extend to the external view. The draft version expressly contained the permission for commercial use. According to its explanatory remarks, the amendment to the law of 1936 was based largely on the preliminary draft of the Federal Ministry of Justice from 1930 and the solutions that did not break through from this. The preliminary draft had provided for various changes in the area of the free use of works, but retained the provisions of the UrhG [1920] on freedom from street images in an identical form.
According to the express wording of the explanatory remarks, the wording reproduces § 34 line 3 UrhG [1920] “in other words”. The exception does not apply to works of art located in churches, museums or theaters because these rooms are open to the public, but are not used for public transport like streets, alleys or squares. The explanatory remarks point out, however, that the amended version goes beyond the previous version insofar as the reproduction of executed works of architecture (with the exception of replicas) should also be free "if the building is not located in a location serving public transport is located ". A more detailed reason for this change can be found neither in the explanatory remarks nor in the contemporary literature, which paid no further attention to it.
The current wording differs from that of the UrhG [1936] in two respects. In the course of the implementation of the EU harmonization directive with the UrhG amendment 2003, the group of privileges was extended to the area of public provision of the new § 18a UrhG, with the addition of "and to be made available to the public", which means that use in Internet is covered. On the other hand, according to the explanatory remarks, it was necessary to implement Art. 5 para. 3 lit. h of the harmonization guideline to restrict the free use of works to those works that are not only permanently in public places, but that were also made for this purpose.
Recorded works and privileged uses
According to the final wording of the provision, works of architecture and the visual arts are covered by the freedom of panorama, i.e. not including other works such as linguistic works or works of a scientific or instructive nature, in deviation from the parallel provision of the German UrhG.
Works of architecture. Architectural works are buildings of all kinds, including bridges, for example. However, they must have already been erected (“after construction has been carried out”); Drafts and plans are not accessible to Panorama Freiheit. Even according to the current legal situation, the prevailing opinion of the literature considers it irrelevant whether the buildings are located in a place serving public transport or not. In relation to the old version in the UrhG [1936], the Supreme Court ruled that the restrictive relative clause “which is located in a place serving public transport” only refers to “other works of the visual arts”, but not to works of architecture. This means that a villa located in an inaccessible private park is an exception, as is the view of the courtyard of a house.
Interior view and interior design. The Supreme Court also evaluates the interiors of buildings, such as stairwells, courtyards, corridors, vestibules, individual halls and rooms as well as portals and doors as privileged by the barrier regulation. This view has met with some rejection in the literature. In some cases, concerns about European law are also raised. According to the Supreme Court, the “so-called 'interior architecture'” can also become part of the building. The "overall design of a room (in particular an apartment or a business premises) planned by an architect, whereby the individual pieces of furniture and other furnishings are coordinated according to artistic aspects both with one another and with the nature of the respective room", is in this respect as part of a uniform The architectural work is also accessible to panoramic freedom. The reproduction of such furnishings is no longer recorded on their own, without any recognizable connection with others or with the space surrounding them, because they are then not an integral part of a work of architecture, but in themselves works of applied or visual arts acts. However, it is not necessary to display the entire room; rather, it should be sufficient that the furnishings are not shown on their own or are not in the foreground in such a way that their connection with the space around them can no longer be recognized. In the case of an artistically designed church window, an isolated reproduction is permissible in the opinion of the Supreme Court because the window itself is part of the building (namely the exterior and interior view) and does not only become part of the context of the room; however, the reproduction of parts of the work is just covered by the free use of the work.
Other works of fine arts. Copies of other works of the visual arts must also have been made to remain in a public place. How the term “permanent” is to be understood has not yet been dealt with by the higher court. The literature wants to orient itself partly on the jurisprudence on § 59 dUrhG. According to the general opinion, at a public location, i.e. serving public transport, there is at least no longer anything that is installed or attached in churches, museums or theaters. A poster hung in the hallway of an event center therefore does not meet the public requirement. In Handig's view, graffiti should in principle also be suitable for fulfilling the “permanent” criterion.
It is noticeable that the entire regulation literally only refers to works, which raises the question of whether simple photographs ( §§ 73 f. UrhG) may also be displayed with reference to freedom of panorama. For these, a corresponding application of the provision on freedom of panorama is not expressly ordered (cf. § 74 para. 7 UrhG). Part of the literature therefore rejects the applicability of panorama freedom to simple photographs with reference to the wording, while another part affirms it with reference to an unintended loophole.
Privileged uses. The free usability according to § 54 Abs. 1 Z. 5 does not depend on the purpose of the use, so that recordings or representations can also be used commercially. The permitted types of work use are finally listed in the regulation. Edits are not covered by the limitation. In the opinion of the Supreme Court, the admissibility of changes in reproductions within the scope of the freedom of street images follows the provisions in Section 21 (1) UrhG. A stylized representation (e.g. of a building facade on a bottle label) is no longer in the privileged circle of panoramic freedom because it is not a picture. The work can onlybe used without a permit if there is alarge gap between it and the work shown or represented within the framework of free use ( Section 5 (2) UrhG); However, from the outset there is no need to refer to Section 54 (1) (5). The (three-dimensional) replica of a work of architecture is not permitted, regardless of whether the building is in a public place. Both in the case of buildings and other works of the visual arts, it is not necessary that the entire work is shown, so that even a partial reproduction is covered by the freedom of panorama.
Switzerland
In Switzerland , too , works that are permanently located on generally accessible land can be freely reproduced. The image "may be offered, sold, broadcast or otherwise distributed" ( Art. 27 Para. 1 CopA - works on generally accessible ground ). Paragraph 2 states that the illustration “cannot be three-dimensional ” (as a model ) “and cannot be used for the same purpose as the original”. This excludes, for example, the transfer of a fresco from a generally accessible house wall to another house. Before the URG revision in 1993, the material scope of Art. 27 was still limited to the reproduction of works of fine art and photography, according to today's wording, all visually perceptible works - e.g. a poem carved in a stone - can be invoked can be used to determine the limit.
“[A] generally accessible” refers to the factual accessibility; The ownership structure of the land is irrelevant in this regard. Accessibility does not have to be permanent, for example in the case of a park that is closed during the night. Places that are only accessible to certain categories of people are, in the overwhelming opinion of the literature, no longer “generally accessible”. It is a matter of dispute whether the levying of entrance fees in this sense already precludes the applicability of the barrier.
The freedom of panorama also applies to works on (not generally accessible) private land, but which can be seen with the naked eye from generally accessible land. According to the prevailing opinion, interiors should not fall under the freedom of panorama. What exactly is to be classified as “interior” is controversial in individual cases. Part of the literature distinguishes between the interior space (which is not privileged by the freedom of panorama mentioned above) . and the privileged courtyard. (provided, of course, that it is generally accessible). Classification as interior space can be difficult, as in the case of train station halls or shopping arcades, so that different positions on the applicability of Art. 27 URG are represented in the literature for these cases. However, according to the overwhelming opinion, church rooms should no longer be included.
With "permanent" is meant the permanent installation. The work must not be in the relevant location by chance (for example because of a transport). What is disputed is the exact time frame to be used with “permanent”: According to one view of Macciacchini / Oertli , only works should be recorded that are “in a place intended for them” for an indefinite period of time, which is based on the objective recognizability of the The will of the rights holder should be assessed; Similarly, Dessemontet focuses on the intention of the rights holder to leave the work permanently in its (public) place; and demand Rehbinder / Viganó that the work "is recognizable intentionally permanently on or on publicly accessible ground" and that it was dedicated to it. According to a differing view of Barrelet / Egloff and Carron et al. However, the duration of the exhibition should not count, so that sculptures that are temporarily exhibited in a public park as part of a temporary exhibition, but are otherwise in a museum, should also be subject to the freedom of panorama. What is only on public property for a limited time because it is destroyed by the effects of the weather or the like (such as chalk paintings, a snow sculpture and probably also unauthorized graffiti art) can, according to the literature, be reproduced within the framework of street image freedom.
In contrast to the German parallel regulation, the Swiss regulation does not explicitly mention an obligation to indicate the source or author in relation to the reproduced work. For this reason, part of the commentary literature is based on the (unrestricted) applicability of the general recognition obligation of Art. 9 CopA; Another assumes an obligation to be named if the work is the subject of the illustration, and at the same time assumes - analogous to Section 63 (1) dUrhG - that it will no longer exist if the author is not named on the work copy and is also not otherwise known to the user . An inferior opinion assumes that generally neither a source nor an indication of the author is required.
Union and Convention Law
European Union
In the European Union, Directive 2001/29 / EC (InfoSoc Directive) grants the member states in Art. 5 the right to include a number of exceptions or restrictions to copyright exploitation rights listed in their national laws. According to Paragraph 3 lit. This also includes the use of “works such as works of architecture or sculptures that were made to be permanently in public places”. In some cases, the member states have aligned their regulation literally (e.g. Austria), in some cases a different wording has been retained or implemented. The European legislator also provides for the use of the so - called three - stage test for copyright restrictions (Art. 5, Paragraph 5). According to this, the permitted "exceptions and restrictions [...] may only be used in certain special cases [1. Stage] in which the normal recovery of the work or other subject matter is not impaired [2. Stage] and the legitimate interests of the right holder are not unduly violated [3. Step]". This three-stage test has been expressly included in the copyright law in some countries (for example in Hungary, where it precedes the catalog of restrictions as a general principle of interpretation in Art. 32 (2) of Law No. LXXVI. 1999 on copyright law); it is predominantly part of the acquis communautaire must be taken into account in the design even without express mention.
The three-stage test conformity of the panorama freedom exception in individual cases is controversial. In a ruling from 2016, the Swedish Supreme Court found it incompatible with the three-step test to make a large number of photographs of works of art in public space publicly accessible in a freely accessible database on the Internet (see more in the section “ Sweden " ). In the literature, too, Senftleben , for example, takes the view that systematic reproduction and public reproduction for commercial purposes impaired normal work utilization and therefore failed at the second stage.
The Union legislature's reliance on works “that were made to be permanently in public places” stood or stands in a certain discrepancy to the regulations in some member states, as the wording indicates that the privilege is based solely on the production purpose has orientated. Various practical concerns are raised against such a consideration, which has hitherto been alien to many legal systems - such as the German and Austrian ones. A subjective production purpose for a third party who wants to photograph the work is not even apparent. It may also be questionable whether it is appropriate to disregard a later “rededication” of the work even if it is supported by the will of the author. Against this background, some authors in the literature consider Art. 5 Para. 3 lit. h The InfoSoc guideline should be expanded to include works that are actually located in a public place with the consent of the author.
In its final report on the implementation of the Harmonization Directive 2001/29 / EC, presented in June 2015, the Legal Affairs Committee of the European Parliament proposed, as part of a motion for a resolution to the European Commission, among other things, to defend the position that member states that provide for freedom of panorama, must limit this to non-commercial use; Commercial users should no longer be able to invoke the exception rule. Parliament rejected this passage, however, and finally resolved the motion for a resolution, completely omitting a statement on freedom of panorama; an amendment aimed at recognizing a right to “use photographs, video material or other images of works permanently placed in public places” was also rejected.
International agreements
In the relevant international treaties on copyright ( Revised Bern Convention [RBÜ], WIPO Copyright Treaty [WCT], World Copyright Agreement [WUA] and TRIPS Agreement ) freedom of panorama is not expressly regulated. However, these often also provide for the three-stage test as a general barrier against which national provisions of panoramic freedom have to be measured (Art. 10 Para. 2 WCT; Art. 13 TRIPS; Art. 9 Para. 2 RBÜ, but only for reproduction) .
Legal situation in other countries
France
Norm, recorded works and privileged uses
The French code de la propriété intellectuelle (CPI), based here in the version of the changes of October 7, 2016, provides in Art. L.122-5 No. 11 that the author of a published work of architecture or plastic Art, which is subject to change ( en permanence ) in a public place ( sur la voie publique ) is, the reproduction ( reproduction ) and display ( représentation ) can not forbid if it is made by a natural person and has no commercial character ( [... ] à l'exclusion de tout usage à caractère commercial ) . "Presentation" ( représentation ) refers to the public including the performance, presentation, transmission, broadcasting and making available on the Internet in French copyright law (see. Art. L.122-2 CPI).
No works of building or plastic art and therefore not privileged are, as already discussed in the context of the Senate deliberations, works of street art . In the absence of a permanent character, the use of works that are set up in the context of temporary exhibitions in public spaces is also excluded. With regard to privileged uses, the literature sometimes points out that the scope of "commercial" use remains unclear due to the lack of a suitable legal definition, which leads to practical difficulties.
Legal development
The regulation was incorporated into the codified copyright law in October 2016 through the law for a digital republic (Loi pour une République Numérique) ; previously there was no comparable definition of the limits. Previous legislative advances were unsuccessful; In December 2005 the National Assembly refrained from the possibility of introducing freedom of panorama as provided for in the implementation of Directive 2001/29 / EC.
The original government draft of the law for a digital republic, contrary to the recommendation of the National Council for Digitales (Conseil national du numérique) , did not provide for a provision to introduce freedom of panorama. In the course of the deliberations in the National Assembly , however, a number of amendments in favor of such a regulation were tabled. The proposals, all of which were rejected by the government with reference to negotiations on the freedom of panorama to be awaited at the European level, differed in particular in whether the commercial usability should be restricted and whether only natural persons should benefit from the exception. The National Assembly finally agreed on the proposal, supported by the Committees for Culture and Law, that “reproductions and representations of works of architecture and plastic art that remain in a public place” should be privileged “by non-profit making individuals ( particuliers ) ( à des fins non lucratives ) ". In the motions, the initiative was justified, among other things, by the fact that authors of buildings in public space should not be able to privatize the view of their buildings through copyright law; In addition, it should be possible for families, for example, to publish their vacation photos on the Internet, even if a building or a recent sculpture is in the center of the picture. The rejection of an exemption, including for commercial use, was justified by the risk of financial losses for the authors.
In the Senate , the commission de la Culture, de l'Éducation et de la Communication (commission de la Culture, de l'Éducation et de la Communication) proposed a change in its final report as part of a comprehensive discussion of the provision, according to which not only individuals but also non-profit organizations (within the meaning of the law of July 1, 1901) should enjoy freedom of panorama. By excluding profitable uses, the property interests of the authors are already sufficiently taken into account. Accordingly, the Senate reaffirmed the path taken to exclude commercial uses from the privileged circle, referring to the threat of financial losses for the authors of up to twenty percent of their income. However, he suggested "for clarification" to replace the wording "without the intention of making a profit" with "without direct or indirect commercial character" ( à l'exclusion de tout usage à caractère directement ou indirectement commercial ) . With this formulation of the exception, the draft law then also left the Senate.
In the Joint Committee of the Senate and the National Assembly ( commission mixte paritaire ) , the final wording was proposed as a compromise. This limits the exempted usability on the one hand to uses by natural persons ( réalisées par des personnes physiques ) , on the other hand, uses “with a commercial character” are not included ( à l'exclusion de tout usage à caractère commercial ) .
Other provisions
In some cases in which a work located in a public place is depicted and this image is used, the case law intercepts an extended de minimis exception. This construction was important for works in public places, especially before Art. L.122-5 No. 11 CPI came into force, but remains relevant for those - for example commercial - uses that are excluded from the exemption there.
In jurisprudence and literature it is recognized in this sense that works of art and buildings that are in public places may in any case also be depicted without approval if they do not represent the central object of the illustration, i.e. only appear as an accessory, so to speak ( theory de l'accessoire) . For example, the Cour de cassation ruled in 2005 by the highest court that the distribution of a postcard with a public space as a motif does not require the consent of the author of the artistically designed floor covering for this space. This was based on the fact that, due to the lack of a reference between the purpose of the illustration and the floor covering in its (co) imprint, there was no independent public communication (communication de l'œuvre au public) . In contrast, in the case of a television report on endangered works of art, the court denied the admissibility of the comprehensive reproduction of some sculptures exhibited in a public park, because in its opinion it would not have been necessary to show them as a whole and in close-up. There is also no free usability if a work is used as a decorative element for the design of a product, because the evaluation then specifically relates to the work shown. In the opinion of Lucas / Lucas / Lucas-Schloetter, the Cour de cassation seems to have in the meantime taken over from a legal point of view to treat the accessory exception as an (unwritten) limitation regulation; previously the existence of a copyright exploitation act was denied in such cases.
Great Britain
In the United Kingdom , Section 62 of the Copyright, Designs and Patents Act 1988 in relation to buildings and - to the extent that they are permanently in a public place or public property - sculptures, models of buildings and works of art enables the production of graphic works showing them Production of reproductive photographs and films as well as the sending of a pictorial reproduction. Copies that have been legally produced in this way can also be distributed, just as everything that has been legally produced under these restrictions may be publicly reproduced (Section 62, Paragraph 3). According to one view in the commentary literature, the term "publicly accessible" is to be interpreted as including properties to which access is only granted for a fee or license fee, although there is nothing against it if the owner provides the visitors with contractual conditions imposed with regard to the reproduction of exhibits. Another comment emphasizes that the regulation also seems to cover three-dimensional reproduction. However, some voices in the literature conclude from the wording of the provision that there is a practical problem: Because the copyright to the building (or the sculpture, etc.) is taken into account, according to this view the provision does not extend to plans and models of the respective work ( tücks); For this reason, an act of use that is permissible in accordance with Section 62 from the copyright on the plans / models can be prevented again.
The provision has its roots in the Copyright Act 1911. This stipulated in Section 2 (1) (iii) that the production or publication of paintings, drawings, engravings and photographs of a plastic work or a work of handicraft that is permanently in a public The place or building is located, nor does the production or publication of paintings, drawings, engravings and photographs of (any) architectural work of art constitute a violation of copyright, unless the reproduction is in the form of a construction drawing or a construction plan.
Netherlands
Legal development
According to the version of panorama freedom that was in force between 1912 and 1972, it was not to be regarded as an interference with copyright law if an item specified in Art. 6 ("Works of drawing, painting, architecture, lithographs, engravings and other pictorial works"), which was permanently displayed on or on the public street, was reproduced as long as the reproduction clearly differs from the original work in terms of its size and method of production differed and, in the case of buildings, was limited to the external appearance. In 1972, the limitation was significantly restricted by adding the requirement that the work should not be the main object of reproduction.
When the InfoSoc directive was implemented in 2004, the scope and scope of exemption of the barriers were finally expanded again. In particular, the previous criterion of permanent, visible installation on or on a public street was adapted to the more generous wording in the InfoSoc guideline and the ban on use as the main object of recovery was abandoned.
Today's regulation
According to Art. 18 of the Dutch Copyright Act (auteurswet) of September 23, 1912 (based on the version of the changes of July 13, 2016), works that have been made to be permanently located in public places may be reproduced and images, which show the work in question "as it is there" ('het zich aldaar bevindt'), are published without interfering with the copyright of the work creator. However, this only applies to works within the meaning of Art. 10 Paragraph 1 No. 6 ("Works of drawing, painting, architecture, lithographs, engravings and other pictorial works") and works from the field of architecture within the meaning of Art. 10 para. 1 no. 8. When taking over into collective works, it should also be noted that only some works by the same author may be used.
With regard to the public requirement, it is proposed, in accordance with the legal materials, that the provision no longer generally excludes recordings inside buildings today, unlike in the version from 1972. It should also be applicable to works in public parks and train station halls, but not to works that are displayed in school buildings, opera houses and museums. The District Court of Arnhem denied the required public for the interior of a football stadium ( Amsterdam Arena ) with reference to the entry fee to be paid and the possibility of the owner to exclude individuals from access. The District Court of Leeuwarden saw the photograph of some copyrighted residential buildings in a holiday park, which was prominently printed on a bank's advertising poster, as privileged by the freedom of panorama, because the houses there were visible from a public street and from the water.
The necessary intention to remain there permanently excludes the applicability of the barrier to temporary exhibitions in public places. The literature also suggests that graffiti art in a public place should be considered permanent, because although it is regularly removed or painted over, it remains there for an indefinite period.
Only two-dimensional uses are recorded, but not, for example, the creation of a sculpture or a plastic miniature in a snow globe . The illustration of the work on a postcard or in a travel guide is therefore privileged. Use on the Internet is also included. The restriction to images that show the work “as it is there” ('het zich aldaar bevindt') is to be understood - even after the materials - to mean that the work can only be shown in the context of its surroundings, so that a "Exempt" images no longer fall under the freedom of panorama. However, in contrast to the earlier version of the barrier, the work may in principle also be the main subject of the illustration. Quaedvlieg , however, has doubts about this with a view to the three-step test. Reproduction-related enlargements and reductions are permitted.
The fact that only a few works by the same author may be used in collective works under the freedom of panorama is intended, for example, to prevent publications in which a comprehensive retrospective of an author is presented completely free of charge.
The burden of proof with regard to the prerequisites for freedom of panorama is the one who invokes it.
criticism
One of the criticisms in the literature is that important types of work are missing in the effective range of the barrier. For example, de Zwaan points out that works of applied art (Art. 10, Paragraph 1, No. 11) and photographic works (Art. 10, Paragraph 1, No. 9) also played a prominent role in public roads, but not by the freedom of panorama are recorded.
Kruijswijk sees the lack of remuneration for commercial use as a violation of the three-step test from Art. 5 Para. 5 InfoSoc-RL.
Sweden
According to Art. 24 Clause 2 of the Swedish Copyright Act of December 30, 1960 (Lag om upphovsrätt till litterära och konstnärliga Verk, URL), based here in the version of the amendments of May 16, 2017 (entered into force on July 1, 2017) , buildings may be freely reproduced (avbildas fritt) . Restricting provisions apply to works of fine art: According to Art. 24 Clause 1 No. 1, they may be displayed if they are permanently in the open air (utomhus) at or in a public place (allmän plats) . Works of the fine arts are, for example, paintings, sculptures, graphics and reliefs, regardless of whether they are in two- or three-dimensional form, but not works that fulfill a purpose, such as in particular buildings or works of applied art. This also includes painting a building facade. In individual cases, the demarcation can be difficult - for example in the case of lavishly designed windows or ceramic art. Maps and other works of a descriptive nature that appear as drawings, engravings or in three-dimensional form are, however, to be considered literary works (Art. 1, Paragraph 2, URL).
What is only temporarily exhibited in a public place cannot be reproduced using the freedom of panorama. Even what is inside - for example in churches, museums or similar institutions - is not accessible to the barrier regulation. Only the pictorial representation is privileged, in particular not the reproduction in plastic form. Duplication is also permitted as the main object, for example on a postcard.
However, the limit regulation is restricted by the highest court by applying the three-step test directly ; Thus, in the opinion of the Supreme Court, making photos that are in itself privileged accessible in a freely accessible database on the Internet may be inadmissible because this form of exploitation could unreasonably conflict with the author's legitimate interests. This assessment is based in particular on the fact that such databases can have a considerable commercial value due to a high degree of dissemination - be it for the provider himself or third parties who refer to it via hyperlinks , for example - according to Art. 24 No. 1 but not with a compensatory value Allowance for compensation claim; In the case of the non-digital use only considered by the historical legislator, the intensity of intervention is much lower than in the digital area.
The security law in Sweden must also be observed, according to which buildings or other facilities on which a yellow sign with the words “Skyddsobjekt” (protected) with a crossed camera is not allowed to be shown.
United States
standard
In the United States , 17 USC Section 120 (a) permits the creation, distribution, and public display of pictures, pictorial representations, photographs, and other pictorial representations of a completed architectural work, provided the building in which the work is set is on public property or is usually visible from there. There is no comparable provision for other work categories.
Legal development and applicability over time
The provision of Section 120 (a) went into effect on December 1, 1990 as part of the Architectural Works Copyright Protection Act . This went back to the accession of the United States to the revised Berne Convention , as a result of which the legislature included “architectural works” as a new protection category. Their new protection should at the same time be restricted by making visual representations possible. For architectural works with an "intrinsic functional function [...] that does not merely consist in depicting the appearance of the object or conveying information", there was basically no protection before the Architectural Works Copyright Protection Act came into force .
Like the entire protection of architectural works, the regulation only applies to architectural works that were created on or after December 1, 1990. There is an exception for works that were simply not yet executed at this point in time.
Recorded works
"Architectural work"
Privileged and so far at the same time under the Freedom of Panorama - - Among the protected as architectural works buildings include not only "classic" habitable buildings (habitable structures) such as homes and office buildings, but after the establishment of the Congress in the House Report also those who only used by people such as churches, pergolas, viewing and garden pavilions. The Copyright Office similarly defines buildings as "human habitable structures that are intended to be both permanent and stationary, such as houses and office buildings, and other permanent and permanent structures designed for human consumption, including, but not limited to , Churches, museums, viewing and garden pavilions ”. Residential houses and post offices are recorded as unquestionably in the case law, insofar as they represent an achievement worthy of protection. For structures that are not buildings, such as bridges, motorway junctions, dams, footpaths, tents, recreational vehicles, mobile homes and boats, the Copyright Office does not want to grant registration as an architectural work. They regularly remain completely defenseless.
The classification of monuments causes difficulties. They meet no utilitarian function normally, so they also before the entry into force of the Architectural Works Copyright Protection Act as a pictorial, graphic, or sculptural works ( pictorial, graphic and sculptural works ) would have enjoyed protection. This gives rise to the question of whether newer monuments are now to be classified as architectural works due to the change in the law - with the result that they can be used for freedom of panorama. The answer to this is controversial. In the opinion of the Court of Federal Claims, an ensemble of 19 soldier sculptures, which forms the central component of a war memorial, is not an architectural work in the sense of the regulation, because it is not intended to be walked on by people, either to find protection in it or to another purpose, such as holding a religious ceremony.
Does the freedom of panorama run empty with parallel protection as a pictorial, graphic or plastic work?
A practical problem can arise when a building is protected both as an architectural work under Section 102 (a) (8) and contains elements that enjoy protection as pictorial, graphic or plastic work under Section 102 (a) (5) . Because the freedom of panorama does not apply to the latter, so that the question arises whether the architectural work should not be reproduced in the result after all.
Protection as a pictorial, graphic or plastic work is generally considered on the one hand if the object in question does not have an “intrinsic functional function that does not merely consist of depicting the appearance of the object or conveying information” ( Section 101 ). This was the case, for example, in the case of the war memorial mentioned above. If the product still has such a utilitarian function, protection is still eligible as long as the artistic component of the commodity as such "separable" (seperable) is. This is the case when the component in question can be presented separately from the commodity as a two- or three-dimensional work of art and then itself enjoys protection as a pictorial, graphic or plastic work - either standing on its own or fixed in another physical carrier.
The question of how to proceed when there is protection as an architectural work as well as protection of individual elements as pictorial, graphic or plastic work is controversial. The decision of Leicester v. Warner Bros. of the 9th District Court of Appeals. In the underlying case, the author of a high-rise, which is separated from the street by four towers, registered the entire ensemble including some other works of art as a sculptural work according to Section 102 (a) (5). Warner Bros. , on the other hand, assumed protection as an architectural work and based its filmic exploitation of the ensemble in the film Batman Forever on the freedom of panorama. In its decision from the year 2000, the court found that the towers were an integral part of the architectural work and, as such, could also be reproduced without authorization under Section 120 (a) - regardless of whether they could also be protected in parallel as plastic Works could exist. In his dissenting opinion , Judge Fisher, on the other hand, takes the view that if there is a plastic work that is permanently integrated into an architectural work but fulfills the separability criterion, the architect can choose whether the integrated work only according to Section 102 (a) (5), only according to Section 102 (a) (8) or both sections is to be protected: If he does not rely exclusively on the protection under Section 102 (a) (8), a third party may request a pictorial representation of the building that reflects the pictorial, graphic or plastic work shows, not even relying on exception 120 (a). According to this view, in the case of an architectural work that contains a separable pictorial, graphic or plastic work (e.g. an artistically designed window), one should rely fully on Section 102 (a) (5) for its protection and thus permit-free use according to section 120 (a). The decision of the court met with approval, but also with rejection in the literature.
Privileged uses
The exemption includes commercial uses. The alternative of “usually visible from there” expresses the fact that the building can also be on private property.
criticism
The freedom of street images for architectural works is rejected by parts of the literature because private use of works is already possible under the fair use doctrine and the possibility of purely commercial further use (such as the sale of merchandising articles) unduly burdens the architect's copyright. It is also criticized that the provision with regard to the permitted types of exploitation with the blanket reference to "visual reproductions" remains too vague, so that it is unclear whether it also includes drawings. An expansion to other types of work is occasionally advocated.
Other countries
- Albania
- Art. 82 of the Albanian Copyright Act of 2016 allows anyone to reproduce works that are permanently located outdoors in publicly accessible places free of charge. The reproduction must not be three-dimensional. In the case of architectural works, the barriers only apply to the external appearance. Where possible, the source and author should be given.
- Andorra
- The Andorran law on copyright and related rights of June 10, 1999 (Llei sobre drets d'autor i drets veïns) does not contain any provision regarding freedom of panorama.
- Australia
- The Australian Copyright Act, here based in the version of the amendments of May 25, 2016, provides in Art. 65 that the copyright in a work that is not only temporarily in a public place or on publicly accessible property by the production of a painting, a drawing, an engraving, a photograph or the inclusion in a cinematographic film or television broadcast is not violated. This is only true for sculptures (sculptures) and works of arts and crafts (works of artistic craftsmanship) .
- Belgium
- According to Art. XI.190 No. 2 of the Code of Commercial Law (code de droit économique) (11th book on intellectual property, inserted by law of April 19, 2014 with effect from January 1, 2015), here in the version of the amendments of June 29, 2016, the author of a legally published work cannot prohibit its reproduction and public reproduction if the work is exhibited in a location accessible to the public and the reproduction or public reproduction is not aimed at the work itself. For works of plastic art, graphics and architecture that are intended to be permanently located in a public place, Art. XI.190 No. 2/1 additionally provides that these may be reproduced and publicly reproduced, provided that the duplication or public reproduction shows the work as it is there (telle qu'elle s'y trouve), and on the other hand does not impair the normal exploitation of the work and the legitimate interests of the rights holder are not unduly violated. With the latter restriction, the Belgian legislature adopted an excerpt from the three-stage test from Article 5 (5) of the InfoSoc Directive (while preserving the wording there), as it did in the context of some other limitation provisions within its copyright legislation.
The more extensive provision of Art. XI.190 No. 2/1 was added by amendment of June 27, 2016 (entered into force on July 15, 2016). A motion to insert Art. XI.190 No. 2/1 only with the additional stipulation that the act of exploitation may not serve commercial purposes either directly or indirectly, had not previously found a majority in Parliament. - Brazil
- The law no. 9610 of February 19, 1998 on copyright and related rights (Lei dos Direitos Autorais), here based in the version of the changes of August 14, 2013, regulates in Art. 48 that works which are permanent are in public places, may be reproduced freely through painting, drawing, photography and audio-visual processes. In contrast, the previous law - Law No. 5988 of December 14, 1973 - provided that the reproduction of works of art in public places does not constitute an infringement of copyright (Art. 49 (1) case e)).
- China
- The Chinese copyright law allows anyone, free of charge, to copy, trace, photograph or record a work of art that is set up or exhibited in the open air in a public space (Art. 22 No. 10). According to the rulings of the Supreme People's Court , the name of the author and the title of the work must always be given when using a photograph of a sculpture; the obligation to name does not apply if the sculpture does not bear the name of its author. Other than the types of exploitation mentioned in Art. 22 No. 10, in particular, for example, the reproduction of a work in three-dimensional form, are not covered by the limit according to popular opinion. It should be noted that works of visual art and architectural works represent different types of work (Art. 3 No. 4).
- Denmark
- According to Section 24 (3) of the Danish Copyright Act as amended by Amendment Act No. 321 of April 5, 2016, buildings can be freely reproduced without any further restrictions. According to the Commission's report on the draft version of the Copyright Act, this should not affect the author's right to be named. The Commission also counts bridges, ships and similar construction products as buildings. According to Section 24 (2), works of the visual arts may be depicted if they are permanently attached to or in a publicly accessible place or path; However, this does not apply if the work of fine art is the main motif or if it is used commercially.
- Estonia
- Estonia has a provision for freedom of panorama in § 20 1 of the Copyright Act (Autoriõiguse seadus) , based here in the version of the amendments of April 10, 2016. According to this, works of architecture, fine or applied arts as well as photographs that are permanently in public accessible locations can be reproduced in any way (except by mechanical contact copy ) free of charge. The reproduction may then be publicly reproduced, provided that the work is not the main object of reproduction and the use is not for direct commercial purposes. If the name of the author is indicated on the work, this must also be indicated in the public communication (§ 20 1 sentence 2).
- Finland
- According to Section 25a (3) of the Finnish Copyright Act (Tekijänoikeuslaki) of July 8, 1961, here based on the version of the changes from July 1, 2016, works of art can be reproduced if they are permanently on or in the direct vicinity of a public Place. If the work is the main motif of the representation, it may not be used for commercial purposes; However, use in a newspaper or magazine is permitted if the image has an internal connection to the text (Section 25a (3) sentence 2). According to Section 25a (4), buildings can be displayed freely - without any further conditions.
- Iceland
- The Icelandic Copyright Act (Höfundalög), based here in the version of the amendments of January 1, 2016, grants in Article 16 the right to take and show photographs of buildings and works of art that are permanently in a public place outdoors . If the building or work of art is the main object of photography and this is used for commercial purposes, the freedom of panorama is tied to a remuneration obligation if it is not used in a newspaper or as part of a television broadcast.
- Italy
- Italian copyright law, primarily laid down in Law No. 633 of April 22, 1941 on the protection of copyright and other rights related to its exercise (Legge April 22, 1941 , n. 633: Protezione del diritto d'autore e di altri diritti connessi al suo esercizio) , based here in the version of the changes from January 22, 2016, does not provide for any barrier regulation comparable to freedom of panorama.
- Japan
- Art. 46 of the Japanese Copyright Act (Act No. 48 of May 6, 1970) as amended by Act No. 121/2006 provides that works of art whose originals are to be displayed in the open air in accordance with Art. 45 Para is, or works of architecture can be used in any way. However, this does not apply in some cases, namely the reproductions of a work of sculpture and its offer to the public by passing on the reproductions; the replica of a work of architecture and its offer to the public by passing on the replica; the reproduction of a work for the purpose of setting it up permanently in the open air in accordance with Art. 45 Paragraph 2; and the reproduction of a work of art for the sole purpose of selling the reproductions and selling the reproductions.
- Croatia
- According to Art. 91 of the Croatian Copyright Act (Zakon o autorskom pravu i srodnim pravima) as amended by Amending Act 141/2013 of December 5, 2013, works that are permanent on streets, squares, parks or other places that are publicly accessible, to be reproduced and to distribute and publish such reproductions (para. 1), as long as the reproduction is not in three-dimensional form (para. 2). The source and the name of the author must be mentioned on the copies made in accordance with Paragraph 1, unless such information is not possible (Paragraph 3). The determination of the barriers is not limited with regard to the types of work recorded.
- Latvia
- In Latvia, according to the copyright law amended on December 6, 2007, it is allowed to use images of works of architecture, photography, visual arts, design and applied arts located in public places for personal purposes and as information in messages or to use reports on current events or for non-commercial purposes (Art. 25 Para. 1). This does not apply in cases in which the image is used to repeat the work, it is broadcast by broadcasters or is used for commercial purposes (Paragraph 2).
- Liechtenstein
- According to the Liechtenstein Copyright Act of May 19, 1999 (based here in the version of the amendments of October 1, 2015), it is permissible to depict a work that is permanently on or on generally accessible land and to offer the image , to broadcast or "otherwise" to disseminate ( Art. 29 Para. 1 CopA). However, it must not be three-dimensional and also not usable for the same purpose as the original (Art. 29 Para. 2 CopA).
- Lithuania
- The Lithuanian law on copyright and related rights of May 18, 1999 (based here in the version of the amending law XII-1183 of October 7, 2014) permits, provided the source is indicated, including naming the author (unless this proves impossible ), To reproduce works of architecture and sculptures and to make them publicly accessible, except when these are shown in the context of exhibitions or in museums (Art. 28 Paragraph 1 No. 1). This does not apply if the work represents the central motif and it is used directly or indirectly for commercial purposes (Paragraph 2). It is also not allowed to reproduce works of architecture in the form of buildings or other structures, and to make copies of sculptures (Art. 3).
- Poland
- Art. 33 para. 1 of the law on copyright and related rights of February 4, 1994 (Ustawa z dnia 4 lutego 1994 roku o prawie autorskim i prawach pokrewnych) in the version of the changes of October 21, 2010 stipulates that the publication of permanent is permitted on generally accessible paths, streets, squares or works set up in gardens, provided they are not used for the same purpose. According to Padlewska , for the permanent character, the setting up should be sufficient for an indefinite period of time without a fixed connection to the ground being important. Naturally short-lived works such as ice or sand sculptures should also fall under the freedom of panorama. The freedom of panorama no longer extends to works in interiors; However, entry fees or limited opening times (e.g. in a park) should not prevent their applicability. An act of exploitation serves “one and the same use” in particular when a building or a sculpture is copied; such uses no longer fall under the freedom of panorama. The depiction of certain buildings may be restricted by the ordinance on the protection of objects of particular importance for state security and defense of June 24, 2003.
- Portugal
- In 2004, Portugal adopted the proposed regulation from the InfoSoc directive almost unchanged. According to Art. 75 Para. 2 lit. q of the Portuguese Copyright Act ( Código do Direito de Autor e dos Direitos Conexos ), based here in the version of the amendments of June 5, 2015, it is permitted without permission to use works such as those of architecture or sculptures that were made for this purpose to be permanently in public places ( locais públicos ) ; this also applies to the distribution of lawfully produced copies, insofar as this is justified by the purpose of the reproduction. Art. 76 para. 1 lit. a places these privileged acts of use (like all others also provided for in Art. 75, Paragraph 2) on the condition that, whenever possible, the name of the author and the publisher, the title of the work and the identifying circumstances must be given. Furthermore, all restrictions are subject to the “abbreviated” nationally codified three-stage test from Art. 75, Paragraph 4, which does not include the first stage (restriction to certain special cases). The freedom of panorama according to Art. 189 Para. 3 applies analogously to related property rights. There is no restriction to certain types of work. A remuneration obligation is not provided.
The term "use", which is used by the limitation regulation, comprehensively covers the individual exploitation activities and includes in particular the exploitation rights of reproduction, public reproduction and distribution granted in the InfoSoc Directive. In order to interpret the term “public place”, some Portuguese literature suggests using the definition from the area of broadcasting law; According to Art. 149 Para. 2, a public place is a place to which, expressly or tacitly, access is offered - free of charge or with costs - regardless of any reservation to exclude persons from access. Against this background, Nobre also sees the interiors of public buildings recorded. - Russia
- The fourth book of the Russian Civil Code, based here in the version of the changes dated December 13, 2016, contains a regulation on freedom of panorama. According to this, works of the visual arts and photographic works that are permanently in a public place may be reproduced, distributed, broadcast via radio and cable and made publicly accessible without remuneration or consent (Art. 1276, Paragraph 1). However, this does not apply if the illustration of the work is the main object of use or if the illustration is used for commercial purposes. According to Paragraph 2 added in 2014, the same exploitation acts are even permitted without restriction for works of architecture, urban planning and landscape art that are located in a public place or are visible from such a place.
In contrast, the provision in the law on copyright and related rights of July 9, 1993, provided for an even narrower version of the limitation provision. According to Art. 21, without the consent of the author and without payment of an author's fee, it was permissible to reproduce works of architecture, photography or the fine arts that are permanently installed in a place open to free access, to broadcast them by radio or by cable to be communicated for general information, unless the illustration of the work represents the main object of such utilization or the illustration of the work is used for commercial purposes. The provision was adopted in a slightly modified form when the Copyright Act 2008 was incorporated into the Civil Code. A further exemption for works of architecture, urban planning and landscape art did not take place until 2014. - Slovakia
- According to Art. 27, works that are permanently in a public place can be represented graphically without the permission of the author. The various types of work are all listed in Article 7 of the Act. Art. 27 literally refers to the type of use of the works within the freedom of panorama, among other things, of "disseminating to the public through sale [...]", so that freedom of panorama also applies to the commercial use of the works. Art. 27 para. 1 also refers to Art. 25 sentence 3. According to this, it is mandatory for the use of the works within the scope of panorama freedom to name the source and the author. The determination of the barriers is not limited with regard to the types of work recorded.
- Slovenia
- The freedom of panorama is regulated in Art. 55 of the Zakon o avtorski in sorodnih pravicah (based on the version of the amending law of December 15, 2006). According to this, works that are permanently in parks, streets, squares or other generally accessible places can be used freely (para. 1), provided that the reproduction is not made in three-dimensional form and its use does not serve the same purpose as the original is still carried out with the intention of making a profit (Paragraph 2). The exemption from use is linked to the obligation to indicate the source; In addition, the author must be named if he is indicated on the workpiece used (Paragraph 3). Art. 55 does not impose any restrictions on the types of work recorded.
- Spain
- The freedom of panorama in Spain results from Art. 35 para. 2 of the Royal Decree No. 1/1996 of April 12, 1996 in the version of the Royal Decree No. 20/2011 of December 30, 2011. According to this, works that are permanent Be located in a park, on streets, squares or in other public places, freely reproduced, distributed and reproduced by painting, drawing, photography and audio-visual processes. The determination of the barriers is not limited with regard to the types of work recorded.
- Czech Republic
- The Czech Copyright Act (Act No. 121/2000) as amended by the Amending Act of April 22, 2008 also recognizes freedom of panorama. According to Art. 33, there is no copyright infringement if a work that is permanently located in a square, a street, in a park, on a public path or in another public place. As far as possible, however, the name of the author (except in the case of an anonymous work) or the name of the person under whose name the work is presented to the public, as well as the title and location of the work must be given (para. 1) . This permission does not apply, however, if an architectural work is reproduced or imitated in the form of a building, and likewise if a work is reproduced in three-dimensional form.
- Uganda
- As part of a fair use provision, the Ugandan copyright law allows the reproduction and public reproduction of architectural works by means of photography or an audio-visual or television broadcast if the work is permanently located in a public place.
- Hungary
- It is permitted, free of charge, to make recordings of works of fine art, architecture and applied art that are permanently erected outdoors in a public place (Art. 68 Paragraph 1 of Act No. LXXVI. 1999 on Copyright).
- Cyprus
- Art. 7 (2) (c) of Law 59/1976 allows the reproduction and distribution of works of art free of charge that are permanently located in a place where they can be seen by the public. The determination of the barriers is not limited with regard to the types of work recorded.
See also
literature
- General
- Reto M. Hilty , Sylvie Nérisson: Balancing Copyright: A Survey of National Approaches . Springer, Berlin, Heidelberg 2012, ISBN 978-3-642-29595-9 , doi : 10.1007 / 978-3-642-29596-6 .
- Ernst D. Hirsch Ballin: On the freedom of the street scene . In: Archive for Copyright, Film, Radio and Theater Law (UFITA) . tape 23 , 1957, pp. 1-15 .
- Philipp Möhring (founder), Paul Katzenberger (ed.): Sources of copyright. Luchterhand, Neuwied 1961. Loose-leaf collection, status: 56th edition 2005 (publication with this delivery discontinued), ISBN 3-7875-2400-2 .
- Bryce Clayton Newell: Freedom of Panorama: A Comparative Look at International Restrictions . In: Creighton Law Review . tape 44 , no. 2 , 2010, p. 405-427 .
- Antoon Quaedvlieg: De wettelijke vertekeningen van de panoramavrijheid . In: Tijdschrift voor Auteurs-, Media- en Informatierecht (AMI) . tape 42 , no. 1 , 2018, p. 2-10 .
- Antoon Quaedvlieg: Driestappentoets en panoramavrijheid: In botsing bij het prominent gebruik van werken in reclame . In: Tijdschrift voor Auteurs-, Media- en Informatierecht (AMI) . tape 42 , no. 1 , 2018, p. 19-25 .
- Germany
- Maximilian Becker: Architectural copyright as an instrument for event protection . In: Journal of Intellectual Property . tape 6 , no. 2 , 2014, p. 228-254 , doi : 10.1628 / 186723714X14139626212833 . [On freedom of panorama: pp. 239–241.]
- Claudio G. Chirco: The freedom of panorama . Nomos, Baden-Baden 2013, ISBN 978-3-8329-7685-9 .
- Christian Czychowski: § 59 UrhG. In: Axel Nordemann, Jan Bernd Nordemann and Christian Czychowski (eds.): Copyright. 12th edition. Kohlhammer, Stuttgart 2018, ISBN 978-3-17-034406-8 .
- Thomas Dreier : § 59 UrhG. In the S. and Gernot Schulze (ed.): Copyright Law. 6th edition. Beck, Munich 2018, ISBN 978-3-406-71266-1 .
- Thomas Dreier, Indra Spiecker Döhmann: The systematic recording of the street image: the legal admissibility of online services such as “Google Street View” . Nomos, Baden-Baden 2010, ISBN 978-3-8329-5699-8 .
- Gunda Dreyer: § 59 UrhG. In this. u. a. (Ed.): Heidelberg Commentary on Copyright. 4th edition. CF Müller, Heidelberg a. a. 2018, ISBN 978-3-8114-4702-8 .
- Stefan Ernst: On the freedom of panorama of copyright . In: Journal for Copyright and Media Law . tape 42 , no. 6 , 1998, pp. 475-481 .
- Otto-Friedrich Frhr. von Gamm (Ed.): Copyright Law . Beck, Munich 1968.
- Wolfram Gass: § 59 UrhG. In: Käte Nicolini and Hartwig Ahlberg (eds.): Copyright Law. 2nd Edition. Franz Wahlen, Munich 2000, ISBN 3-8006-0314-4 .
- Ekkehard Gerstenberg: § 59 UrhG. In: Gerhard Schricker (Ed.): Copyright. 1st edition. Beck, Munich 1987, ISBN 3-406-31266-7 .
- Cornelie von Gierke: The freedom of the street scene (§ 59 UrhG) . In: Hans-Jürgen Ahrens u. a. (Ed.): Festschrift for Willi Erdmann: For his 65th birthday . Heymanns, Cologne 2002, ISBN 3-452-25191-8 , p. 103-115 .
- Horst-Peter Götting: § 31. In: Ulrich Loewenheim (Hrsg.): Handbook of Copyright. 2nd Edition. Beck, Munich 2010, ISBN 978-3-406-58518-0 .
- Ulrike Grübler: § 59 UrhG. In: Hartwig Ahlberg and Horst-Peter Götting (eds.): Beck'scher online comment on copyright. 13th edition. Beck, Munich 2016 (as of July 1, 2016).
- Ulla Kelp: The freedom of panorama in copyright law . In: The IP law advisor . tape 8 , no. 7 , 2017, p. 161-164 .
- Rober Kirchmaier: § 59 UrhG. In: Ernst J. Mestmäcker and Erich Schulze (eds.): Commentary on German copyright law. Loose-leaf collection, status: 55th AL 2011 (publication discontinued with this delivery).
- Thomas Koch: Of three-dimensional reproductions and floating works of art - freedom of panorama in the case law of the Federal Court of Justice . In: Hans-Jürgen Ahrens et al. (Ed.): Festschrift for Wolfgang Büscher . Heymanns, Cologne 2018, ISBN 978-3-452-28944-5 , p. 197-206 .
- Stefan Lüft: § 59 UrhG. In: Artur-Axel Wandtke and Winfried Bullinger (eds.): Practical commentary on copyright. 4th edition. Beck, Munich 2014, ISBN 978-3-406-60882-7 .
- Peter Lutz: Freedom of representation . In: Marcel Bisges (Ed.): Handbook Copyright . Erich Schmidt, Berlin 2016, ISBN 978-3-503-16618-3 , p. 307-314 .
- Wilhelm Nordemann : § 59 UrhG. In the S. and Friedrich Karl Fromm (Ed.): Copyright. 10th edition. Kohlhammer, Stuttgart 2008, ISBN 978-3-17-019771-8 .
- Eva Inés Obergfell: § 59 UrhG. In: Wolfgang Büscher, Stefan Dittmer and Peter Schiwy (eds.): Commercial legal protection, copyright, media law. 3. Edition. Heymann, Cologne 2015, ISBN 978-3-452-27879-1 .
- Jan Poeppel: The reorganization of copyright barriers in the digital environment . V&R unipress, Göttingen 2005, ISBN 3-89971-226-9 . [On freedom of panorama: pp. 417–420.]
- John Riecken: Protected goods in the film set . V&R unipress, Göttingen 2011, ISBN 978-3-89971-897-3 . [On freedom of panorama: pp. 101–126.]
- Haimo Schack : Comment on BGH, ruling v. April 27, 2017 - I ZR 247/15 - AIDA Kussmund . In: Commercial legal protection and copyright . tape 119 , no. 8 , 2017, p. 802-803 .
- Anja Steinbeck : My house on Google Street View . In: Willi Erdmann u. a. (Ed.): Festschrift for Michael Loschelder: For his 65th birthday . O. Schmidt, Cologne 2010, ISBN 978-3-504-06218-7 , pp. 367-377 . [On freedom of panorama: pp. 375–377.]
- Malte Stieper : The freedom of the street scene in copyright and design law - Comment on BGH ZUM 2017, 766 - AIDA-Kussmund . In: Journal for Copyright and Media Law . tape 61 , no. 10 , 2017, p. 770-772 .
- Theresa Uhlenhut: Freedom of panorama and right of ownership . Peter Lang, Frankfurt am Main 2015, ISBN 978-3-631-66395-0 .
- Eugen Ulmer : Copyright and Publishing Law . 3. Edition. Springer, Berlin, Heidelberg 1980, ISBN 3-540-10367-8 . [On freedom of panorama: § 74, pp. 330–333.]
- Martin Vogel: § 59 UrhG. In: Ulrich Loewenheim, Matthias Leistner and Ansgar Ohly (eds.): Copyright. 5th edition of Gerhard Schricker until the 3rd edition ed. Work. Beck, Munich 2017, ISBN 978-3-406-67274-3 .
- Endress Wanckel: Photo and image rights . 5th edition. Beck, Munich 2017, ISBN 978-3-406-71222-7 . [Regarding freedom of panorama: Rn. 92-95.]
- Austria
- Meinhard Ciresa: § 54 UrhG. In the S. (Ed.): Austrian Copyright. Comment. Loose-leaf collection, Manzsche publishing and university bookstore, status: 19th EL 2017.
- Robert Dittrich: Austrian and international copyright law . 6th edition. Manz, Vienna 2012, ISBN 978-3-214-01269-4 . [Overview of case law]
- Christian Handig: In the focus of the drone: The freedom of the street scene . In: ecolex . tape 26 , no. 7 , 2015, p. 528-531 .
- Thomas Höhne: Architecture and Copyright: Theory and Practice: A Guide for Architects, Engineers and their Legal Advisers . 2nd Edition. Manz, Vienna 2014, ISBN 978-3-214-02436-9 . [On freedom of panorama: pp. 135–150.]
- Guido Kucsko: The freedom of the street scene . In: Walter Barfuß u. a. (Ed.): Commercial law in theory and practice: memorial for Fritz Schönherr . Manz, Vienna 1986, ISBN 3-214-06064-3 , pp. 125-135 .
- Lothar Alexander Müller: The moral right of the architect in German and Austrian law . Beck, Munich 2004, ISBN 3-406-52290-4 . [On freedom of panorama: pp. 100–110.]
- Clemens Thiele: Celebrity houses, freedom of panorama and protection of personality . In: Building Law Sheets . tape 10 , no. 6 , 2007, p. 214–217 , doi : 10.1007 / s00738-007-0283-0 (also freely accessible online [PDF file, 0.1 MB]). [On the relationship between copyright freedom of panorama and property and personal rights]
- Michel M. Walter: Austrian Copyright: Manual: 1st part . Verlag Medien und Recht, Vienna 2008, ISBN 978-3-900741-52-5 . [On freedom of panorama: pp. 606–610.]
- Adolf Zemann: § 54 UrhG. In: Guido Kucsko and Christian Handig (eds.): Copyright.recht. Comment on copyright law. 2nd Edition. Manzsche publishing and university bookstore, Vienna 2017, ISBN 978-3-214-01169-7 .
- Switzerland
- Denis Barrelet, Willi Egloff (Ed.): The new copyright: Commentary on the federal law on copyright and related rights . 3. Edition. Stämpfli, Bern 2008, ISBN 978-3-7272-9563-8 .
- Ivan Cherpillod: Works on Generally Accessible Land (URG 27). In: Roland von Büren and Lucas M. David (eds.): Copyright and related rights. Vol. 2, Part. 1 (Swiss intellectual property and competition law) . Helbing & Lichtenhahn, Basel 2014, ISBN 978-3-7190-3178-7 , pp. 302–304.
- François Dessemontet: Le droit d'auteur . Center du droit de l'entreprise, droit industriel, droit d'auteur, droit commercial de l'Université de Lausanne, Lausanne 1999, ISBN 2-88197-038-9 . [On freedom of panorama: pp. 369–372.]
- François Dessemontet: La propriété intellectuelle et les contrats de license . 2nd Edition. Center du droit de l'entreprise, droit industriel, droit d'auteur, droit commercial de l'Université de Lausanne, Lausanne 2011, ISBN 978-2-940363-24-7 . [On freedom of panorama: pp. 112–114.]
- Reto M. Hilty: Copyright . Stämpfli, Bern 2011, ISBN 978-3-7272-8660-5 . [On freedom of panorama: pp. 209–210.]
- Sandro Macciacchini, Reinhard Oertli: Art. 27 URG. In: Barbara K. Müller and Reinhard Oertli (eds.): Stämpflis hand commentary on copyright law. 2nd Edition. Stämpfli, Bern 2012, ISBN 978-3-7272-2553-6 .
- Manfred Rehbinder, Adriano Pietro Viganò (Ed.): URG: Comment . 3. Edition. Orell Füssli, Zurich 2008, ISBN 978-3-280-07143-4 .
- Marc-André Renold, Raphaël Contel: LDA Art. 27. In: Jaques de Werra and Philippe Gilliéron (eds.): Propriété intellectuelle. Helbing & Lichtenhahn, Basel 2013, ISBN 978-3-7190-2853-4 .
- Other countries
- Paul Goldstein: Goldstein on Copyright. 3. Edition. Loose-leaf collection, as of: 2017-1. [UNITED STATES]
- Bente Kruijswijk: De toekomst van de panoramavrijheid: Art. 18 Auteurswet getoetst aan de Europese driestappentoets . In: Tijdschrift voor Auteurs-, Media- en Informatierecht (AMI) . tape 42 , no. 1 , 2018, p. 11-18 . [Netherlands]
- Cédric Manara: La nouvelle «exception de panorama». Gros plan sur l'article L. 122-5 10 ° du Code de la propriété intellectuelle . In: Revue Lamy droit de l'immatériel . No. 129 , 2016, p. 40-43 . [France]
- Melville B. Nimmer, David Nimmer: Never on Copyright. Loose-leaf collection, status: 102nd EL 2017. [USA]
- Teresa Nobre: Freedom of Panorama in Portugal. In this. (Ed.): Best Case Scenarios for Copyright: Freedom of Panorama, Parody, Education and Quotation (PDF file, 6.1 MB). COMMUNIA International Association on the Public Domain, 2016, accessed November 28, 2016, pp. 7-19. [Portugal]
- Henry Olsson, Jan Rosén: Upphovsrättslagstiftningen: En comment . 4th edition. Kluwer, Stockholm 2016, ISBN 978-91-39-01878-0 . [Sweden; on freedom of panorama: pp. 201–203.]
- Julia Padlewska: Wolność panoramy w perspektywie porównawczej - Polska, Niemcy i Francja . In: Zeszyty Naukowe Uniwersytetu Jagiellońskiego . No. 2 , 2017, p. 29-64 . [Poland, Germany, France]
- William F. Patry: Patry on Copyright. Loose-leaf collection, as of September 2017. [USA]
- RAM Quanjel-Schreurs: Article 18 AW. In: FW Grosheide, JCS Pinckaers and JH Spoor (eds.): Intellectuele eigendom. Artikelgewijs commentaar. Loose-leaf collection, Reed Business, Amsterdam, vol. 2, status: 51. EL 2015. [Netherlands]
- Daniel Westman: Avbildning av constverk and byggnader on the internet . In: Nordiskt immaterial rättsskydd . tape 82 , no. 6 , 2013, p. 602-608 . [Sweden]
- Marcel de Zwaan: Geen beelden, geen nieuws: Beeldbeperkingen in oud en nieuw auteursrecht . Cramwinckel, Amsterdam 2003, ISBN 90-75727-84-4 . [Netherlands; on freedom of panorama: pp. 182–193.]
- Marcel de Zwaan: De Auteurswet gewijzigd: Article 18 Aw (art op openbare plaatsen) . In: Tijdschrift voor Auteurs-, Media- en Informatierecht (AMI) . tape 29 , no. 3 , 2005, p. 87-90 . [Netherlands]
Web links
Remarks
- ↑ Divergent, possibly Susanne Janetzki and John Weitzmann, Report on the Freedom of Panorama in Europe , 2014, accessed on November 18, 2014, p. 3.
- ↑ See for example Thomas Fuchs, Law on Copyright and Related Rights (Copyright Law) of September 9, 1965. Historisch-synoptische Edition 1965–2016. Section 59 , accessed April 30, 2017.
- ↑ Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 1.
- ↑ Printed in Elmar Wadle, The Federal Decree of November 9, 1837 against reprinting. The result of a controversy from a Prussian point of view, in: Journal of the Savigny Foundation for Legal History. German Department, 106, 1989, pp. 189–238, here p. 230 ff.
- ↑ Art. II No. 1: "[Excepted from the provision of Art. I are:] Works of architecture in their external outlines, then the monuments erected in public places, subject to any arrangements to be made regarding their replication, then the Consent of those whose property wants to be entered for the purpose of such replication, where in order to enter such it is necessary to give permission. "Quoted after the announcement in the legal gazette for the Kingdom of Bavaria, 1840 (digitized via the Bayerische Staatsbibliothek, urn : nbn: de: bvb: 12-bsb10345315-6 ), No. 4, column 37-50, here column 39 f. See Chirco, Die Panorama Freiheit, 2013, op.cit., P. 28.
- ↑ Chirco, Die Panorama Freiheit, 2013, op.cit., P. 28.
- ^ Elmar Wadle, The way to the legal protection of intellectual and commercial creation. The German development in the 19th century, in: German Association for Commercial Legal Protection and Copyright (Ed.), Commercial Legal Protection and Copyright in Germany. Festschrift for the centenary of the German Association for the Protection of Intellectual Property and Copyright and its magazine, VCH, Weinheim 1991, ISBN 3-527-28100-2 , Vol. 1, pp. 93-183, here pp. 120 ff.
- ↑ The law is printed with comments in Julius E. Hitzig, Das Königl. Prussian law of June 11, 1837 for the protection of the property of works of science and art against reprinting and copying, illustrated in its creation and explained in its individual provisions, Ferdinand Dümmler, Berlin 1839 (digitized via Max Planck Institute for European Legal History, mpier.mpg.de ), reprinted in UFITA, 107, 1988, pp. 163–226.
- ↑ Ludwig E. Heydemann, Franz Hinschins and Ludwig von Rönne, draft of a law for Germany to protect the ownership of works of science and art against reprinting and copying together with motifs. (Printed as a manuscript.), Dr. v. Julius Sittenfeld, Berlin 1857 (digitized via Bayerische Staatsbibliothek, urn : nbn: de: bvb: 12-bsb10528745-6 ).
- ↑ Chirco, Die Panorama Freiheit, 2013, op.cit., P. 31. Elmar Wadle, The Frankfurt Draft of a German Copyright Act of 1864 - An Introduction to Reprinting, in: UFITA, 120, 1992, p. 33 –55, here p. 35 ff.
- ↑ Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 31. The draft is reprinted in UFITA, 121, 1993, pp. 71–291, on street freedom p. 268–281.
- ↑ The version, which already relies on the modern criterion of permanent attachment, was able to prevail against deviating proposals, one of which referred to “sculptural works that are set up in streets or public places” and another referred to the ownership of the work Center put the exception rule on replicas of "sculptural works that are set up on public streets or squares and are not in private ownership". The decision-making process was preferred over the latter because, in the Commission's view, it was not the question of property that matters, but general accessibility and public use, and also because the mention of private property in practice (which was found to be worthy of protection) could result in difficulties. Cf. Protocols of the commission convened by the high German Federal Assembly for the drafting of a common law for all German federal states for the protection of copyright in works of literature and art against reprint and against unauthorized reproduction and performance, Frankfurt 1864. Quoted here. after the reprint in UFITA, 121, 1993, pp. 71-291, here p. 233.
- ^ Elmar Wadle, The way to the legal protection of intellectual and commercial creation. The German development in the 19th century, in: German Association for Commercial Legal Protection and Copyright (Ed.), Commercial Legal Protection and Copyright in Germany. Festschrift for the centenary of the German Association for the Protection of Intellectual Property and Copyright and its magazine, VCH, Weinheim 1991, ISBN 3-527-28100-2 , Vol. 1, pp. 93–183, here p. 57. Also on the causes the general blockade of civil law standardization Franz Laufke, The German Federation and Civil Legislation, in: Paul Mikat (Ed.), Festschrift for the 75th birthday of Hermann Nottarp, CF Müller, Karlsruhe 1961, pp. 1–57, here p. 22 ff ., 30 ff.
- ↑ Elmar Wadle, The Frankfurt Draft of a German Copyright Act of 1864 - An Introduction to Reprinting, in: UFITA, 120, 1992, pp. 33–55, here p. 54.
- ↑ Gustav von Mandry, The copyright on literary products and works of art. A commentary on the K. Bavarian Laws of June 28, 1865, Palm & Enke, Erlangen 1867 (digitized via Max Planck Institute for European Legal History, mpier.mpg.de ), p. 256 f.
- ↑ Elmar Wadle, The rounding of German copyright law in 1876, in: Juristic Studies, 1976, No. 12, pp. 771–776, here pp. 773 f. The resolution of the Reichstag, including the final debate at the 44th session on May 13, 1870, is printed in Stenographic Reports on the Negotiations of the Reichstag of the North German Confederation, 2, Bundesdruckerei, Berlin 1870, pp. 874 ff. (Digitized via Bayerische Staatsbibliothek, Reichstag protocols .de ). The first reading took place at the 7th session on February 21, 1870; the debate is printed in shorthand reports on the negotiations of the Reichstag of the North German Confederation, 1, Bundesdruckerei 1870, p. 26 ff. (digitized via the Bayerische Staatsbibliothek, reichstagsprotlog.de ).
- ↑ Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 34; Stenographic reports on the negotiations of the Reichstag of the North German Confederation, 2, Bundesdruckerei, Berlin 1870, p. 888.
- ↑ The draft is printed as printed matter No. 89 in printed matter for the negotiations of the Federal Council of the North German Confederation, Berlin 1868; For freedom of panorama see § 47 No. 2 there.
- ↑ The new draft is printed as printed matter No. 115 in the printed matter for the negotiations of the Federal Council of the North German Confederation, Berlin 1869, vol. 2 (digitized via Bayerische Staatsbibliothek, urn : nbn: de: bvb: 12-bsb10518655-2 ); for freedom of panorama see § 61 No. 2 there.
- ↑ The "Reichstag version" of February 14, 1870, including the reasons, is printed as file No. 7 in files of the Reichstag of the North German Confederation, in: Stenographic reports on the negotiations of the Reichstag of the North German Confederation, 3, Berlin, 1870, p. 125 ff . (Digitized via Bayerische Staatsbibliothek, reichstagsprotocol.de ).
- ↑ One of the reasons for this was the fear that well-known artists would withhold their works of art from public collections as a result. Cf. Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 36. In addition, the majority of the commission objected that this would put the artist's exclusive right of reproduction "completely uncertain", since a private person who purchases a work of art, for example , could sell it to a museum, which would also make the work of art usable for those who “do nothing themselves, but turn the use of third-party services into a trade”. The report of the commission on the draft law, together with the comments on the proposed amendments, is printed as file No. 138 in files of the Reichstag of the North German Confederation, in: Stenographic reports on the negotiations of the Reichstag of the North German Confederation, 3, Berlin 1870, p. 536 ff . (Digitized via Bayerische Staatsbibliothek, reichstagsprotocol.de ), here p. 547 f., 559.
- ↑ § 6, Paragraph 2 (RegE): “[The following is not to be regarded as prohibited replication:] The replication of works of plastic art that are permanently installed on streets or public places. However, the replica must not take place in plastic form. ”The draft version of the government is printed as file No. 24 in annexes to the negotiations of the Reichstag, in: Stenographic reports on the negotiations of the German Reichstag. 2nd legislative period, 3, Berlin 1876, p. 70 ff. (Digitized via Bayerische Staatsbibliothek, reichstagsprotocol.de ).
- ↑ Printed as file No. 76 in appendices to the negotiations of the Reichstag, in: Stenographic reports on the negotiations of the German Reichstag. 2nd legislative period, 3, Berlin 1876, p. 293 ff. (Digitized via Bayerische Staatsbibliothek, reichstagsprotlog.de ).
- ↑ See the explanations of the members of parliament Karl Gustav Ackermann and Karl Braun in Stenographic Reports on the Negotiations of the German Reichstag. 2nd legislative period, 1, Berlin 1876, p. 576 (digitized via Bayerische Staatsbibliothek, reichstagsprotocol.de ).
- ↑ Stenographic reports on the negotiations of the German Reichstag. 2nd legislative period, 1, Berlin 1876, p. 577 (digitized via Bayerische Staatsbibliothek, reichstagsprotocol.de ).
- ↑ Stenographic reports on the negotiations of the German Reichstag. 2nd legislative period, 1, Berlin 1876, p. 579 (digitized via Bayerische Staatsbibliothek, reichstagsprotocol.de ).
- ↑ Stenographic reports on the negotiations of the German Reichstag. 2nd legislative period, 1, Berlin 1876, p. 594 (digitized via Bayerische Staatsbibliothek, reichstagsprotocol.de ).
- ↑ Von Gamm, Copyright Law, 1968, introduction para. 6-8. Closer Elmar Wadle, The rounding of German copyright law in 1876, in: Juristische Studien, 1976, No. 12, pp. 771–776, here pp. 775 f .; Albert Osterrieth, comments on the draft law on copyright in works of photography, Carl Heymanns Verlag, Berlin 1903, p. 7 ff .; Bruno Meyer, The new photographic protection law after the government drafts, Verlag der Deutsche Photographen-Zeitung, Weimar 1902, p. 2 ff.
- ↑ § 15 (RegE 1902): “It is permissible to reproduce works that are permanently located on public streets or squares by reproducing their external appearance. Insofar as a work may be reproduced according to this, distribution and demonstration is also permitted. ”Here, quoted from the reprint in Commercial Legal Protection and Copyright, 9, No. 5, 1904, here p. 123.
- ↑ Here, quoted after the reprint of the justification in Intellectual Property Law and Copyright, 9, No. 5, 1904, here p. 132.
- ↑ Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 47 f., With further references. For example, Albert Osterrieth objects that the norm is “in contradiction with all principles of copyright law” and that the reasoning appears “not sufficient to justify such a serious interference [...]” as “the rights of the artist would be in such cases [repealed] in which the most intensive economic exploitation of his creation is possible ”. Cf. Albert Osterrieth , comments on the draft law, concerning the copyright in works of the fine arts and photography, in: Commercial legal protection and copyright, 9, No. 9, 1904, here p. 250. In contrast, in the same edition Philipp Allfeld, The draft of a law concerning the copyright in works of the visual arts and photography, in: Industrial property rights and copyright, 9, No. 9, 1904, p. 258 ff., Here p. 267, which means a reservation by the author could "lead to the suppression of all traffic with images of such works". For his part, Osterrieth refers to the unequal treatment of visual artists and other artists; only from the visual artist would "such a sacrifice in the interests of cultural considerations" be required, but not, for example, from "the poet of a patriotic song or the composer of a patriotic or religious hymn". Cf. Albert Osterrieth, The copyright protection for works of architecture and the draft of a law regarding the copyright in works of the fine arts and photography, in: Architektonische Rundschau, 20, No. 12, 1904, pp. 89-92, here p. 91. Bruno Meyer did not provide a corresponding barrier in his own draft, cf. Bruno Meyer, The new photographic protection law according to the government drafts, Verlag der Deutsche Photographen-Zeitung, Weimar 1902.
- ↑ The draft version of November 28, 1905, including the reasons, is printed as file No. 30 in Stenographic Reports on the Negotiations of the Reichstag. 2. Anlageeband, Berlin 1906, p. 1526 ff. (Digitized via Bayerische Staatsbibliothek, reichstagsprotocol.de ).
- ↑ File No. 30 in Stenographic Reports on the Negotiations of the Reichstag. 2. Anlageeband, Berlin 1906, p. 1539 (digitized via Bayerische Staatsbibliothek, reichstagsprotocol.de ).
- ↑ “Another side stated that the concept of 'public square' was clear, but not that of 'public street'. It was established that the concepts of the right of way did not apply here, but that the concept of 'public road' etc. had to be explained from the subject matter of the law itself and the spirit of this law. As a result, “public roads” may also count as “private roads”. ”Cf. file no. 448 in Stenographic Reports on the Negotiations of the Reichstag. 6th installation volume, Berlin 1906, p. 4683 (digitized via Bayerische Staatsbibliothek, reichstagsprotocol.de ). Albert Osterrieth, who polemicized against the barrier on various occasions, speculates in his commentary on the KUG that the insertion was probably based on the expectation "that one day the footpaths of the Grunewald will be paved with monuments". Cf. Albert Osterrieth, Copyright in works of the visual arts and photography, Carl Heymanns Verlag, Berlin 1907, § 20, I.3.
- ^ Heinz Püschel, Copyright, 2nd edition, Staatsverlag der DDR, Berlin 1986, p. 13; Wilhelm Nordemann: The new East German copyright law, in: Commercial legal protection and copyright, 68, No. 12, 1966, pp. 660–664.
- ↑ Quoted from Heinz Püschel, Copyright, 2nd edition, Staatsverlag der DDR, Berlin 1986, p. 143.
- ↑ Closer Boddien in Fromm / Nordemann, Copyright, 12th edition 2018, EV Einl. Rn. 1; Katzenberger / Metzger in Schricker / Loewenheim, copyright, 5th edition 2017, before §§ 120ff. Marg. 173 ff.
- ↑ BT-Drs. 4/270 of March 23, 1962, p. 13.
- ↑ BT-Drs. 4/270 of March 23, 1962, p. 76.
- ↑ BT-Drs. 4/270 of March 23, 1962, p. 76.
- ↑ BT-Drs. 4/270 of March 23, 1962, p. 177.
- ↑ BT-Drs. 4/270 of March 23, 1962, p. 180.
- ↑ Written report of the Legal Committee on the draft of a law on copyright and related rights (copyright law) introduced by the federal government, BT-Drs. 4/3401 of May 10, 1965, p. 21 as well as the reasoning in the report by Member of Parliament Dr. Reischl in the enclosure, to 4/3401 , p. 11.
- ^ German Bundestag, 187th session. Bonn, May 25, 1965: Stenographic report (PDF file, 2.2 MB), accessed on December 6, 2014, p. 9416 ff. Unchanged also after the work of the mediation committee set up at the request of the Federal Council, which deals with this Regulation did not have to deal with.
- ↑ Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 1. Different view only Gerhard Pfennig, The Encounter of Photography and Art: A Conflict Without End, in: Art and Law, 9, No. 1, 2007, p. 1–5, here p. 2 f. (Legislators have "waived [...] to also allow the barrier to make images of such works accessible to the public").
- ↑ BT-Drs. 4/270 of March 23, 1962, p. 76.
- ↑ BGH, judgment of January 24, 2002, I ZR 102/99 = BGHZ 150, 6, 9 - Wrapped Reichstag (with reference to the official justification); BGH, judgment of June 5, 2003, I ZR 192/00 = GRUR 2003, 1035, 1037 - Hundertwasser-Haus.
- ↑ For example Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 57 ff. (With reference to the example of an architect who has no influence on the final location of his work); Poeppel, The reorganization of copyright barriers in the digital environment, 2005, op. Cit., P. 417 f .; Schack, comment on BGH, judgment of April 27, 2017 - I ZR 247/15 - AIDA Kussmund , 2017, op. Cit., P. 802 f .; Uhlenhut, Panorama Freiheit und Eigenrecht, 2015, op.cit., P. 105 ff.
- ↑ Poeppel, The Reorganization of Copyright Barriers in the Digital Environment, 2005, op. Cit., P. 417 f .; Schack, comment on BGH, judgment of April 27, 2017 - I ZR 247/15 - AIDA Kussmund , 2017, op.cit ., P. 802 f. (as an outflow from the fundamental right to freedom of communication); similar to Uhlenhut, Panorama Freiheit und Eigenrecht, 2015, op. cit., p. 109 ff., in particular p. 119 f., which emphasizes the character of a balancing of interests. Combining both approaches: Michael Nielen, balancing interests in the information society. The adaptation of the copyright restrictions in the digital sector, Peter Lang, Frankfurt am Main 2009, ISBN 978-3-631-59099-7 , p. 223.
- ↑ BGH, judgment of May 4, 2000, I ZR 256/97 = BGHZ 144, 232, 235 - perfume bottle, with numerous references; In contrast, see the first instance - LG Hamburg, judgment of April 25, 1995, 308 O 14/95 - which wanted to infer the legal idea from the provision that “Forms of approval that are readily accessible part of the public environment are also open to everyone for reproduction must be available with visual means ". The “principle of narrow interpretation of limits”, which is (not only) regularly consulted by the BGH, has been the subject of extensive debates for decades, cf. only the evidence at Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, before §§ 44a ff. Rn. 7th
- ↑ On freedom of panorama: BGH, judgment of January 24, 2002, I ZR 102/99 = BGHZ 150, 6, 8 - Wrapped Reichstag ; BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 17. General fundamental BVerfG, decision of June 29, 2000, 1 BvR 825/98 = GRUR 2001, 149, 151 ff. - Germania 3 .
- ↑ Von Gamm, Copyright Law, 1968, § 59 Rn. 2; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 8th; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 3; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 13 f .; Wanckel, Photo and Image Rights, 5th edition 2017, Rn. 92; Bernhard Bittner, On the protectability of place names for tourist sights according to the German Trademark Law, in: Competition in Law and Practice, 2010, No. 11, pp. 1321–1332, here p. 1332; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 121; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op. cit., p. 109; Nikolaus Reber, case groups of permitted use of pre-existing works, in: Holger von Hartlieb and Mathias Schwarz (eds.), Handbook of Film, Television and Video Law, 5th edition, Beck, Munich 2011, ISBN 978-3-406-58219- 6 , pp. 211-214, here para. 3; Uhlenhut, freedom of panorama and property rights, 2015, op.cit., P. 82.
- ↑ Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 2; Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 7; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 8th; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 2; Ulmer, Copyright and Publishing Law, 3rd edition 1980, p. 332; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 15; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 124 f .; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op. cit., p. 109; Fabian Heß, The television transmission of events on public streets and squares with special consideration of copyright aspects, LIT, Münster 2003, ISBN 3-8258-6658-0 , p. 93; Riecken, Protected Goods in the Film Set, 2011, op. Cit., P. 102; Karl E. Wenzel, Copyright for Practice, 4th Edition, Schäffer-Poeschel, Stuttgart 1999, ISBN 3-7910-1535-4 , p. 157.
- ↑ Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 8th; Ulmer, Copyright and Publishing Law, 3rd edition 1980, p. 333; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 15th
- ↑ So now BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 24 ff .; approving Koch, Von three-dimensional duplications and floating works of art , 2018, op.cit., p. 203. But see also BGH, judgment of June 5, 2003, I ZR 192/00 = GRUR 2003, 1035, 1037 - Hundertwasser-Haus ( "[...] only those recordings [...] are privileged that are made of the public paths, streets and places where the building in question is located").
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 25th
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 30; also the lower court OLG Cologne, judgment of 23 October 2015, 6 U 34/15 = GRUR 2016, 495, 497 = WRP 2016, 274, 275 as well as Chirco, Die Panorama Freiheit , 2013, op.cit., p. 130 and Gernot Schulze, Works and Samples in Public Places - Do copyright restrictions also apply in design law ?, in: Hans-Jürgen Ahrens u. a. (Ed.), Festschrift for Eike Ullmann, Juris, Saarbrücken 2006, ISBN 3-938756-10-1 , pp. 93–110, here p. 95.
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 22; Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 3 f .; Götting in Loewenheim, Handbook of Copyright, 2nd edition 2010, § 31 Rn. 241; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 3; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 18; Bernhard Bittner, On the protectability of place names for tourist sights according to the German Trademark Law, in: Competition in Law and Practice, 2010, No. 11, pp. 1321–1332, here p. 1332; Michael Gey, The Right to Make Public Accessible i. S. d. § 19a UrhG , Boorberg, Stuttgart 2009, ISBN 978-3-415-04208-7 , p. 124; Robert Kirchmaier, Selected legal issues of everyday museum life, in: Art Law and Copyright, 6, No. 6, 2004, pp. 177–184, here p. 183; Marc Lammek and Stefan Ellenberg, On the legality of the production and publication of material recordings, in: Journal for Copyright and Media Law, 48, No. 10, 2004, pp. 715–723, here p. 716; Henrik Lehment, Photographing objects of art, V&R Unipress, Göttingen 2008, ISBN 978-3-89971-455-5 , p. 85; Daniel Rassouli, Banksy and its copyright. An inventory of the protection of the art form street art by copyright using the example of Banksy, in: Kunst und Recht, 15, No. 3/4, 2013, pp. 97–101, here p. 98; Riecken, Protected Goods in the Film Set, 2011, op.cit., P. 103 f. For the case law see LG Berlin NJW 1996, 2380, 2381 - Christo II; LG Cologne, judgment of March 4, 2015, 28 O 554/12 (NRWE, Rn. 42); Higher Regional Court Brandenburg, judgment of February 18, 2010, 5 U 14/09 (juris, Rn. 61); accordingly also OLG Hamburg, judgment of September 27, 1973, 3 U 38/73 = GRUR 1974, 165 - garden gate for an artistically designed garden gate on private property.
- ↑ See BGH, judgment of June 5, 2003, I ZR 192/00 = GRUR 2003, 1035, 1037 - Hundertwasser-Haus. In contrast, the lower court OLG Munich, judgment of June 15, 2000, 6 U 5629/99 = ZUM 2001, 76, 78. Approving the BGH on the basis of the legislative history Jan Fritz Geiger and Maximilian Herberger, The freedom of panorama from a methodical point of view - a comment on BGH, judgment of June 5th, 2003, Az. I ZR 192/00 "Hundertwasser-Haus", in: Internet journal for legal informatics and information law, JurPC Web-Document 114/2005, doi: 10.7328 / jurpcb / 20052010112 .
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 35.
- ↑ On all of this now BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 37. The lower instance, on the other hand, dealt with the problem at the factual level by assuming that the recording location need not necessarily be a public place. See OLG Cologne, judgment of October 23, 2015, 6 U 34/15 = GRUR 2016, 495, 497 = WRP 2016, 274, 275, which contradicts the probably prevailing opinion in the literature. See instead of many only Berger in Löffler, Presserecht, 6th edition 2015, UrhR, Rn. 141 (Photography "from a location inaccessible to the public" not permitted); Haimo Schack, Art and Law, 3rd edition, Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155037-9 , Rn. 287 (works of art visible in public space may, within the framework of Section 59 UrhG, have been photographed “regardless of the angle, but only from publicly accessible places”).
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 35; Czychowski in Fromm / Nordemann, copyright, 12th edition 2018, § 59 UrhG Rn. 7; Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 4; Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 15; Götting in Loewenheim, Handbook of Copyright, 2nd edition 2010, § 31 Rn. 241; Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 6; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 9; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 3; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 3; Schack, Copyright and Copyright Contract Law, 8th edition 2017, Rn. 567; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 17; Wanckel, Photo and Image Rights, 5th edition 2017, Rn. 93; Becker, The Copyright of Architects as an Instrument of Event Protection, 2014, op. Cit., P. 240; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 140; Ilja Czernik, Die building photography - undreamt-of legal challenges, in: Zeitschrift für Immobilienrecht, 2015, No. 7, pp. 242–249, here p. 247 (for ladders and support poles, because the perspective must be that of a pedestrian); Stefan Ernst, Google StreetView. Copyright and personal rights issues relating to the street panorama, in: Computer und Recht, 2010, No. 3, pp. 178–184, doi : 10.9785 / ovs-cr-2010-178 , here p. 182; ders., On the freedom of panorama of copyright, 1998, op. cit., p. 476; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op. cit., p. 110; Richard Hahn and Thomas Glückstein, In the new light - the copyright of the designer. A selection of legal questions after the BGH judgment “Birthday Train ”, in: Journal for Copyright and Media Law, 58, No. 5, 2014, pp. 380–388, here p. 387; Thomas Höhne, Architecture and Copyright, 2nd Edition, Manzsche Verlag- und Universitätsbuchhandlung, Vienna 2014, p. 147; Robert Kirchmaier, Selected legal issues of everyday museum life, in: Art Law and Copyright, 6, No. 6, 2004, pp. 177–184, here p. 183; Wolfgang Maaßen, photo right, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 393-520, here p. 461; Gernot Schulze, Works and Samples in Public Places - Do copyright barriers also apply in design law ?, in: Hans-Jürgen Ahrens u. a. (Ed.), Festschrift for Eike Ullmann, Juris, Saarbrücken 2006, ISBN 3-938756-10-1 , pp. 93–110, here p. 95; Steinbeck, Mein Haus bei Google Street View, 2010, op. Cit., P. 376; Uhlenhut, Panorama Freiheit und Eigenrecht, 2015, op.cit., P. 87. Julia Bezzenberger in Oliver Castendyk (Ed.), Photo Right, 2nd Edition, Erich Schmidt Verlag, Berlin 2012, ISBN 978-3-503-09353- 3 , marginal no. 437 (provided that this does not reveal any views "that would otherwise remain hidden from the public"). Differentiating Riecken, Protected Goods in the Film Set , 2011, op.cit., Pp. 106, 108 ff. (Ladders not recorded according to the restrictive BGH jurisprudence, but questionable as a result, because this restricts artistic freedom too much and the wording of the standard does not cover such a restrictive interpretation; the use of film cranes or the like should only be prohibited if they are used to make works visible that would otherwise "not be seen").
- ↑ See BGH, judgment of June 5, 2003, I ZR 192/00 = GRUR 2003, 1035, 1037 - Hundertwasser House (general for aerial photos). Cf. also Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 15; Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 6 (perspectives that only emerge from the air); Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 9; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 3; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 3; Schack, Copyright and Copyright Contract Law, 8th edition 2017, Rn. 567; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 17; Wandtke, Copyright , 6th edition 2017, p. 164 (photographing a building with a drone); Becker, The Copyright of Architects as an Instrument of Event Protection, 2014, op. Cit., P. 240 f .; Julia Bezzenberger in Oliver Castendyk (Ed.), Photo Right, 2nd Edition, Erich Schmidt Verlag, Berlin 2012, ISBN 978-3-503-09353-3 , Rn. 437; Ilia Czernik, Filmrecht, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 119-257, here p. 197; ders., Die building photography - undreamt-of legal challenges, in: Zeitschrift für Immobilienrecht, 2015, No. 7, pp. 242–249, here p. 247 (for photos "from the air" because the perspective must be that of a pedestrian) ; Ernst, On the freedom of panorama of copyright, 1998, op. Cit., P. 476; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op. cit., p. 110; Robert Golz, The Admissibility of Aerial Photographs. Drones - also a threat scenario under civil law ?, in: IP-Beratungpraxis Industrial Property Rights, 2014, No. 1, pp. 11–14, here p. 13 (for “aerial photos, but at least [ sic ] of a certain altitude [over 2m - probably the rule] “[last parenthesis in the original]); Lambert Grosskopf, Active Protection Against Media Drones, in: Computer und Recht, 2014, No. 30, pp. 759–764, doi : 10.9785 / cr-2014-1110 , here p. 762 (for drones, as these differ considerably located above head height above the ground); Thomas Höhne, Architecture and Copyright, 2nd Edition, Manzsche Verlag- und Universitätsbuchhandlung, Vienna 2014, p. 147; Robert Kirchmaier, Selected legal issues of everyday museum life, in: Art Law and Copyright, 6, No. 6, 2004, pp. 177–184, here p. 183 (aerial photographs); Daniel Rassouli, Banksy and its copyright. An inventory of the protection of the art form street art by copyright using the example of Banksy, in: Kunst und Recht, 15, No. 3/4, 2013, pp. 97–101, here p. 99 (perspective from the air); Thomas Regenfus, Legal requirements for the use of camera drones in expert reports , in: Der Sachverektiven , No. 1–2, 2016, pp. 14–20, here p. 19 (aerial recordings with a drone); Riecken, Protected Goods in the Film Set, 2011, op. Cit., P. 107 f .; Steinbeck, Mein Haus bei Google Street View, 2010, op. Cit., P. 376; Uhlenhut, Panorama Freiheit und Eigenrecht, 2015, op. Cit., P. 87 (airplane).
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 35; Czychowski in Fromm / Nordemann, copyright, 12th edition 2018, § 59 UrhG Rn. 7; Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 4; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 6; Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 15; Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 6; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 3; Lutz in Bisges, Handbook Copyright, 1st edition 2016, p. 309, Rn. 510; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 3; Wanckel, Photo and Image Rights, 5th edition 2017, Rn. 93; Becker, The Architect's Copyright as an Instrument of Event Protection, 2014, op. Cit., P. 240 (“Removing a privacy screen”); Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 142; Ilia Czernik, Filmrecht, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 119-257, here p. 197; ders., Stealing Banksy - Real Estate Law Challenges through Street Art, in: Zeitschrift für Immobilienrecht, 2014, No. 15, pp. 551–555, here p. 555; Dreier / Spiecker called Döhmann, The systematic recording of the street scene, 2010, op. Cit., P. 24; Wolfgang Maaßen, photo right, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 393-520, here p. 461; Gernot Schulze, Works and Samples in Public Places - Do copyright barriers also apply in design law ?, in: Hans-Jürgen Ahrens u. a. (Ed.), Festschrift for Eike Ullmann, Juris, Saarbrücken 2006, ISBN 3-938756-10-1 , pp. 93–110, here p. 95.
- ↑ In this sense Czychowski in Fromm / Nordemann, Copyright, 12th edition 2018, § 59 UrhG Rn. 7; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 6; Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 15; Götting in Loewenheim, Handbook of Copyright, 2nd edition 2010, § 31 Rn. 241; Hertin, Copyright, 2nd edition 2008, Rn. 295; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 9; Stefan Ernst, Google StreetView. Copyright and personal rights issues relating to the street panorama, in: Computer und Recht, 2010, No. 3, pp. 178–184, doi : 10.9785 / ovs-cr-2010-178 , here p. 182; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 17; Becker, The Architect's Copyright as an Instrument of Event Protection, 2014, op. Cit., P. 240 (for binoculars and in any case "strong [] telephoto lenses []"); Chirco, Die Panorama Freiheit, 2013, op.cit., P. 142 ff. (Not the meaning and purpose of the standard, because it aims to dispense with the sometimes unaffordable rights clearance when taking pictures of the street scene, when exposing a workpiece using a telephoto lens, however, more detailed inquiries are reasonable; in addition, fundamentally excessive impairment of the author and technical possibilities for the historical legislature not foreseeable); Ilja Czernik, Die building photography - undreamt-of legal challenges, in: Zeitschrift für Immobilienrecht, 2015, No. 7, pp. 242–249, here p. 247 (for telephoto lenses, because the photographer's perspective must be that of a pedestrian); ders., Stealing Banksy - Real Estate Law Challenges through Street Art, in: Zeitschrift für Immobilienrecht, 2014, No. 15, pp. 551–555, here p. 555 (ditto); von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op. cit., p. 110; Thomas Höhne, Architecture and Copyright, 2nd Edition, Manzsche Verlag- und Universitätsbuchhandlung, Vienna 2014, p. 147; Gernot Schulze, Works and Samples in Public Places - Do copyright barriers also apply in design law ?, in: Hans-Jürgen Ahrens u. a. (Ed.), Festschrift for Eike Ullmann, Juris, Saarbrücken 2006, ISBN 3-938756-10-1 , pp. 93–110, here p. 95; Steinbeck, Mein Haus bei Google Street View, 2010, op. Cit., P. 376; Uhlenhut, freedom of panorama and property rights, 2015, op.cit., P. 87 (for binoculars). Different view Berger in Löffler, press law, 6th edition 2015, UrhR, Rn. 141 (for telephoto lenses, provided the work is “visible to the naked eye”); Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 4 ("in view of the otherwise occurring delimitation difficulties", especially since recordings made in this way "are usually associated with loss of quality in the illustration"); Koch, Von three-dimensional reproductions and floating works of art , 2018, op.cit., P. 202 (use of telephoto lenses common practice). Differentiating Riecken, Schutzgüter in der Filmkulisse, 2011, op.cit., Pp. 106, 108 ff. (Telephoto lenses not recorded according to the restrictive Federal Court of Justice rulings, but the result is questionable because this restricts artistic freedom too much and the wording of the norm does not cover such a restrictive interpretation; rather, the use of telephoto lenses should only be prohibited if they are used to make works visible that would otherwise "not be seen").
- ↑ BGH, judgment of June 5, 2003, I ZR 192/00 = GRUR 2003, 1035, 1037 - Hundertwasser-Haus.
- ^ So Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 4; Schack, Copyright and Copyright Contract Law, 8th edition 2017, Rn. 567; Dreier / Spiecker called Döhmann, The systematic recording of the street scene, 2010, op. Cit. P. 25 f. (regarding the alleged position of the case law); Stefan Ernst, Google StreetView. Copyright and personal rights questions about the street panorama, in: Computer und Recht, 2010, No. 3, pp. 178-184, doi : 10.9785 / ovs-cr-2010-178 , pp. 182 f. (No privileges for recordings that would not be possible without the appropriate structure and with a camera position below about 1.80 m in height); Olaf Sosnitza, Google Street View in the mirror of German civil law, in: Eric Hilgendorf (Ed.), Subsidiarität, Sicherheit, Solidarität. Festgabe for Franz-Ludwig Knemeyer on his 75th birthday, Ergon, Würzburg 2012, ISBN 978-3-89913-889-4 , pp. 633–651, here p. 637 (no panorama freedom for photos that “show more than a corresponding one Intake in the normal range of about 1.80 to 2 m ”); Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 17. Another view Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 141 (which suggests to be based on the "height of a full-grown person with outstretched arms, ie approx. 2.50 m", and a surcharge of 1.50 meters added, since it could not make a difference "whether the photographer is in a car, a delivery van or a truck or bus"); David Jahn and Julia Striezel, Google Street View is watching you, in: Kommunikation und Recht, 2009, No. 12, pp. 753–758, here p. 754 (without problematizing the recording height); Steinbeck, Mein Haus bei Google Street View, 2010, op.cit., P. 376 f. (Image taken from a height of 3 meters can still be viewed as street level)
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 23; Czychowski in Fromm / Nordemann, copyright, 12th edition 2018, § 59 UrhG Rn. 6; Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 3; Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 14; Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 6; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 9; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 3; Lutz in Bisges, Handbook Copyright, 1st edition 2016, p. 309, Rn. 509; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 3; Haimo Schack, Art and Law, 3rd edition, Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155037-9 , Rn. 287; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 16; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 127 ff .; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op. cit., p. 110; Koch, Of three-dimensional reproductions and floating works of art , 2018, op. Cit., P. 203; Lothar Müller, The moral right of architects in German and Austrian law, Beck, Munich 2004, ISBN 3-406-52290-4 , p. 102; David Seiler, photography prohibitions, property rights and freedom of panorama, in: Kommunikation und Recht, No. 4, 2010, pp. 234–237, here p. 235; Hanno Schönewald, The legal requirements for photo and film recordings of structures and buildings, in: Competition in Law and Practice, 2014, No. 2, pp. 142–147, here p. 143; Uhlenhut, freedom of panorama and property rights, 2015, op.cit., P. 85 f. Correspondingly, LG Frankenthal, judgment of November 9th, 2004, 6 O 209/04 = GRUR 2005, 577 - Grass sofa, which the public of the depiction site accepted without further ado, even if the park is owned by a foundation. In a different way, probably Friedrich Borges, The copyright to works of architecture, Konrad Triltsch, Würzburg 1936, p. 45 for § 20 KUG ("all works excluded from reproduction that are set up on private streets or in parks").
- ↑ Czychowski in Fromm / Nordemann, copyright, 12th edition 2018, § 59 UrhG Rn. 6 (“Private property that is open to the public all the time, but is protected from free entry by fencing and gate controls”); Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 14 ("Private property on which there is public traffic, but which is protected from unhindered access by fences or controls"); Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 3 (“not subject to free access due to fences and controls”); Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 3 (“Fencing, Access Control and the like”); Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 16 (“private property with entrance control”); Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 132; Lothar Müller, The moral right of architects in German and Austrian law, Beck, Munich 2004, ISBN 3-406-52290-4 , p. 102 (“only if there is no entry control or similar”); Uhlenhut, Panorama Freiheit und Eigenrecht, 2015, op. Cit., P. 85 (no longer public due to the lack of a general access permit, "since the people then have to meet certain criteria in order to gain access", especially when the entrance fee is charged); Patrick Zurth, Legal and legal rights of use in copyright law , Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-154649-5 , p. 328 (ruled out, "[s] if an incoming inspection will take place"). See also OLG Brandenburg, judgment of February 18, 2010, 5 U 14/09 (juris, marginal no. 64), which calls for "uncontrolled access for everyone" (but in the event of a dispute this is not based on local conditions, but because of one of the Opposing dedication of the park, as stipulated in the park owner's statutes, denied; on the other hand, David Seiler, Photography prohibitions, property rights and freedom of panorama, in: Kommunikation und Recht, 2010, No. 4, pp. 234–237, here p. 235) . See also Koch, Von three-dimensional duplications and floating works of art , 2018, op.cit., P. 203 (not a public place if the person entitled only opens access to the public on the condition that the works there are not reproduced, distributed or publicly be reproduced).
- ↑ Czychowski in Fromm / Nordemann, copyright, 12th edition 2018, § 59 UrhG Rn. 6; Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 3; von Gamm, Copyright Law, 1968, § 59 Rn. 2; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 9; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 3; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 128; Ernst, On the freedom of panorama of copyright, 1998, op. Cit., P. 479; Lothar Müller, The moral right of architects in German and Austrian law, Beck, Munich 2004, ISBN 3-406-52290-4 , p. 102; Hanno Schönewald, The legal requirements for photo and film recordings of structures and buildings, in: Competition in Law and Practice, 2014, No. 2, pp. 142–147, here p. 143; Uhlenhut, freedom of panorama and property rights, 2015, op.cit., P. 85 f. (Limited access or opening times are harmless, provided that these are specified in advance). So in the case law also OLG Brandenburg, judgment of February 18, 2010, 5 U 14/09 (juris, Rn. 63); OLG Cologne, judgment of October 23, 2015, 6 U 34/15 = GRUR 2016, 495, 497 = WRP 2016, 274, 275 - AIDA Kussmund.
- ↑ So namely RG, judgment of April 12, 1907, V 1140/06 = RGSt 40, 122, 126 for § 6 No. 3 Art Protection Act [1876]. The relevance of § 59 UrhG also affirmatively Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 3; von Gamm, Copyright Law, 1968, § 59 Rn. 2; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 9; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 3; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 16; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 128; Ernst, On the freedom of panorama of copyright, 1998, op. Cit., P. 479; Koch, Of three-dimensional reproductions and floating works of art , 2018, op. Cit., P. 204; Riecken, Protected Goods in the Film Set, 2011, op. Cit., P. 103; Uhlenhut, Panoramafreedom and Property Rights, 2015, op. Cit., P. 86; Left open in LG Munich I, judgment of January 22, 1992, 21 O 9812/92.
- ↑ Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 6; von Gamm, Copyright Law, 1968, § 59 Rn. 2; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 9; Ulmer, Copyright and Publishing Law, 3rd edition 1980, p. 332; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 14 (“general”); Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 133; Ernst, On the freedom of panorama of copyright, 1998, op. Cit., P. 476; Richard Hahn and Thomas Glückstein, In the new light - the copyright of the designer. A selection of legal questions after the BGH judgment “Birthday Train ”, in: Journal for Copyright and Media Law, 58, No. 5, 2014, pp. 380–388, here p. 387; Riecken, Protected Goods in the Film Set, 2011, op. Cit., P. 103. Probably also Obergfell in Büscher / Dittmer / Schiwy, Commercial Legal Protection, 3rd edition 2015, § 59 UrhG margin no. 3. Another view Koch, Of three-dimensional reproductions and floating works of art , 2018, op. Cit., P. 203 f. (Also applicable to “works in […] museums”, but not if the authorized person only opens access to the public on the condition that the works produced there may not be copied, distributed or publicly reproduced).
- ↑ BT-Drs. 4/270 of March 23, 1962, p. 76.
- ↑ OLG Cologne, judgment of May 5, 2000, 6 U 21/00 = NJW 2000, 2212, 2213 - Gies-Adler .
- ↑ In this sense Czychowski in Fromm / Nordemann, Copyright, 12th edition 2018, § 59 UrhG Rn. 7; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 6; von Gamm, Copyright Law, 1968, § 59 Rn. 2; Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 2; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 9; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 16 (not applicable to “closed buildings such as churches, baths, museums, theaters, underground stations and train station halls, even if they can be freely entered day and night”; another view is still in the first edition Gerstenberg in Schricker, copyright, 1st edition 1987, § 59 Rn. 4 for "a station concourse that is freely accessible to everyone day and night"); Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 137; Ernst, On the freedom of panorama of copyright, 1998, op. Cit., P. 476; Henrik Lehment, Photographing objects of art, V&R Unipress, Göttingen 2008, ISBN 978-3-89971-455-5 , p. 84 (fn. 318); Wolfgang Maaßen, photo right, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 393-520, here p. 461; Karl E. Wenzel, Copyright for Practice, 4th Edition, Schäffer-Poeschel, Stuttgart 1999, ISBN 3-7910-1535-4 , p. 157 (only generally accessible works in the open air). Another view , however Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 para. 3; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 3; Julia Bezzenberger in Oliver Castendyk (Ed.), Photo Right, 2nd Edition, Erich Schmidt Verlag, Berlin 2012, ISBN 978-3-503-09353-3 , Rn. 435 (at least if the "subway stations or station halls [...] can be freely entered day and night"); Koch, Of three-dimensional reproductions and floating works of art , 2018, op.cit., P. 203 f. (However, privileges are ruled out if the person entitled only opens access to the public on the condition that the works there may not be copied, distributed or publicly reproduced); Lothar Müller, The moral right of architects in German and Austrian law, Beck, Munich 2004, ISBN 3-406-52290-4 , p. 102; Hanno Schönewald, The legal requirements for photo and film recordings of structures and buildings, in: Competition in Law and Practice, 2014, No. 2, pp. 142–147, here p. 143; Stieper, The freedom of the streetscape in copyright and design law , 2017, op. Cit., P. 771 (with regard to "train station halls, underground stations [n] and other [n] buildings serving traffic purposes") ; probably also Wilhelm Hautmann and Hermann Riedel, Das neue Fotorecht. Taking into account the copyrights in Austria and Switzerland, Verlag Grossbild-Technik, Munich 1972, p. 110 (works can also be covered, "for example in arcades, in a tunnel of an underground station, etc.": to be based on the "view of life") .
- ↑ For applicability: Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 3; Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 2; Lutz in Bisges, Handbook Copyright, 1st edition 2016, p. 309, Rn. 509; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 3; Chirco, Die Panorama Freiheit, 2013, op. Cit., Pp. 135 f .; Klaus Neuenfeld, Inconsistent in Copyright , in: UFITA, 2016 / II, pp. 363–378, here p. 374; Probably also Hanno Schönewald, The legal requirements for photo and film recordings of structures and buildings, in: Competition in Law and Practice, 2014, No. 2, pp. 142–147, here p. 143. Against: Czychowski in Fromm / Nordemann , Copyright, 12th edition 2018, § 59 UrhG Rn. 7; probably also from Gamm, Copyright Law, 1968, § 59 Rn. 2; Nikolaus Reber, case groups of permitted use of pre-existing works, in: Holger von Hartlieb and Mathias Schwarz (eds.), Handbook of Film, Television and Video Law, 5th edition, Beck, Munich 2011, ISBN 978-3-406-58219- 6 , pp. 211-214, here para. 3, 4 (no inner courtyards and only applicable if the works are in the open air); Karl E. Wenzel, Copyright for Practice, 4th Edition, Schäffer-Poeschel, Stuttgart 1999, ISBN 3-7910-1535-4 , p. 157 (only generally accessible works in the open air).
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 27. The literature in the run-up to the decision is different, see for example Elisabeth Noltenius, A “birthday train” drives through the film: Consequences for film and television productions from the change in case law for the “small coin” , in: Der IP-Rechts-Beratung , Vol. 5, No. 10, 2014, pp. 230–234, here p. 233 (works must be “permanently and firmly connected” in public).
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 28; approving Koch, Of three-dimensional duplications and floating works of art , 2018, op. cit., p. 204; Wanckel, Photo and Image Rights, 5th edition 2017, p. 94.
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 29; also the lower court OLG Cologne, judgment of October 23, 2015, 6 U 34/15 = GRUR 2016, 495, 496 f. = WRP 2016, 274, 275. In the literature, the applicability is controversial, whereby the reasons vary and are partly based on the lack of "permanent" state of mind. See e.g. Berger in Löffler, Presserecht, 6th edition 2015, UrhR, Rn. 141 (applicability in the affirmative for graffiti on public transport); Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 17 (negative for representations on public transport); Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 5 (affirmative for works on moving objects such as buses, trams or ships); Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 4 (affirmative for graffiti on public transport); Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 23 f. (“To apply analogously” to works permanently attached to public transport, negative for representations on vehicles temporarily parked at the roadside; also in the first edition Gerstenberg in Schricker, copyright, 1st edition 1987, § 59 marginal number 5); Chirco, Die Panorama Freiheit, 2013, op.cit., P. 174 f. (negative for private vehicles with reference to the fact that these are also once on private property and insofar the required exclusive use in public space is not available; on the other hand, the applicability affirmative for displays on public transport); Ernst, On the freedom of panorama of copyright, 1998, op. Cit., P. 480 (affirmative also for works on or in private cars); Richard Hahn and Thomas Glückstein, In the new light - the copyright of the designer. A selection of legal questions after the BGH judgment “Birthday Train ”, in: Zeitschrift für Copyright- und Medienrecht, 58, No. 5, 2014, pp. 380–388, here p. 387 (freedom of panorama not applicable to “vehicles or other mobiles Design in the street scene ”); Stieper, The freedom of the streetscape in copyright and design law , 2017, op.cit., P. 771 (advertising on vehicles is typically exchanged regularly, so that lasting character is questionable); Uhlenhut, freedom of panorama and property rights, 2015, op.cit., P. 91 f. (affirmative for displays on public transport, but not on private vehicles: "round-the-clock" access is not required, but since some private vehicles are only rarely used in public - for example on special occasions - the applicability is different for all others, since only objective evidence can be used).
- ^ Originally suggested by Matthias Leistner and Felix Stang, Die Bildersuche im Internet from a copyright point of view, in: Computer und Recht, 2008, No. 8, pp. 499–507, doi : 10.9785 / ovs-cr-2008-499 , here P. 502, which ultimately deny the applicability (unrestricted usability of all Internet content cannot be justified). As a result also Dreyer in Heidelberger Comment copyright , 4th edition 2018, § 59 Rn. 5 (only virtual spatial; general ban on analogy); Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 11 (with reference to the required narrow interpretation); Igor Barabash, Das Bildzitat im Internet , Shaker, Aachen 2010, ISBN 978-3-8322-8669-9 , p. 128 (not comparable); Sandra Brändli, The flexibility of copyright barrier systems: A comparative study using the example of digital challenges , Stämpfli, Bern 2017, ISBN 978-3-7272-1906-1 , marginal no. 480 (too far-reaching consequences and remuneration-free usability for the Internet image search questionable); Chirco, Die Panorama Freiheit, 2013, op. Cit., Pp. 121, 126, 222 (too extensive and no need for exemption, as copyright protection can be determined with a few mouse clicks); Ernst, On the freedom of panorama of copyright, 1998, op. Cit., P. 475 (general ban on analogy); Moritz Hüsch, Thumbnails in Bildersuchmaschinen, in: Computer und Recht, 2010, No. 7, pp. 452–457, doi : 10.9785 / ovs-cr-2010-452 , here p. 454; Manuel Kleinemenke, Fair Use in German and European Copyright Law? A comparative law study to make the copyright barrier catalog more flexible based on the model of the American fair use doctrine, Nomos, Baden-Baden 2013, ISBN 978-3-8487-0643-3 , p. 175 ff. (Analogy at best within narrow limits, but unlimited facts when expanding to use on the Internet); Armin Kühne, Liability of Search Engine Operators, Peter Lang, Frankfurt am Main a. a. 2012, ISBN 978-3-631-62316-9 , p. 164 f. (Overstretching the barrier when content is posted by unauthorized persons); Matthias Leistner, useful "toys" or tools for infringing copyrights? (PDF file, 0.1 MB), in: Bonner Rechtsjournal, 2009, No. 1, pp. 5–13, here p. 9 (unrestricted usability of all Internet content cannot be justified); Stephan Ott, image search engines and copyright, in: Journal for Copyright and Media Law, 53, No. 5, 2009, pp. 345–354, here p. 351; Robert Tinnefeld, Consent to copyright use on the Internet, Mohr Siebeck, Tübingen 2012, ISBN 978-3-16-152268-0 , p. 59 (justification not transferable and such a comprehensive loss of rights unreasonable); Uhlenhut, Panoramafreedom and Property Rights, 2015, op. Cit., P. 81 (too far-reaching); Katharina Ziegler, copyright infringement through social sharing. Copyright and liability-related aspects of social networks using the example of the Facebook platform , Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-154801-7 , p. 176 f. (All too far-reaching consequences, failure of the three-step test of the InfoSoc guideline).
- ↑ BGH, judgment of January 24, 2002, I ZR 102/99 = BGHZ 150, 6, 11 f. - Wrapped Reichstag.
- ↑ On this also Götting in Loewenheim, Handbook of Copyright, 2nd edition 2010, § 31 Rn. 242, with further evidence.
- ↑ BGH, judgment of January 24, 2002, I ZR 102/99 = BGHZ 150, 6, 11 - Wrapped Reichstag.
- ↑ BGH, judgment of January 24, 2002, I ZR 102/99 = BGHZ 150, 6, 12 - Wrapped Reichstag.
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 32. Schack, comment on BGH, judgment of April 27, 2017 - I ZR 247/15 - AIDA Kussmund , 2017, op. Cit., P. 803 (decisive not the view of the general public, but “at the starting point” of the Will of the author).
- ↑ BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 24.
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 33.
- ↑ OLG Cologne, judgment of March 9, 2012, 6 U 193/11 = ZUM-RD 2012, 593, 594 f. - love your city; consenting Vogel in Schricker / Loewenheim, copyright, 5th edition 2017, § 59 marginal no. 22; still left open in the lower court LG Cologne, judgment of 6 September 2011, 33 O 349/11 . See also Ilja Czernik, Die building photography - undreamt-of legal challenges, in: Zeitschrift für Immobilienrecht, 2015, No. 7, pp. 242–249, here p. 247, who takes the view that even provisional buildings are subject to street image freedom if they are over stay in the same place for several years.
- ^ LG Frankenthal, judgment of November 9, 2004, 6 O 209/04 = GRUR 2005, 577 - Grassofa.
- ↑ BGH, judgment of January 24, 2002, I ZR 102/99 = BGHZ 150, 6, 9 - Wrapped Reichstag ; in detail about three in three / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 5; Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 5; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 10; Schack, Copyright and Copyright Contract Law, 8th edition 2017, Rn. 568; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 19; Kelp, Freedom of Panorama in Copyright , 2017, op.cit., P. 163; Lothar Müller, The moral right of the architect in German and Austrian law, Beck, Munich 2004, ISBN 3-406-52290-4 , p. 105.
- ↑ Czychowski in Fromm / Nordemann, copyright, 12th edition 2018, § 59 UrhG Rn. 8th; Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 5; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 17; Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 9; Götting in Loewenheim, Handbook of Copyright, 2nd edition 2010, § 31 Rn. 244; Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 5; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 10; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 4; Lutz in Bisges, Handbook Copyright, 1st edition 2016, p. 310, Rn. 512; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 4; Schack, Copyright and Copyright Contract Law, 8th edition 2017, Rn. 568; ders., Art and Law, 3rd edition, Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155037-9 , Rn. 289; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 23 (also in the first edition Gerstenberg in Schricker, Copyright, 1st edition 1987, § 59 Rn. 5); Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 154; Ilia Czernik, Filmrecht, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 119-257, here p. 197; Ernst, On the freedom of panorama of copyright, 1998, op. Cit., P. 477; Michael Gey, The Right to Make Public Accessible i. S. d. § 19a UrhG , Boorberg, Stuttgart 2009, ISBN 978-3-415-04208-7 , p. 124; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op. cit., p. 111; Fabian Heß, The television transmission of events on public streets and squares with special consideration of copyright aspects, LIT, Münster 2003, ISBN 3-8258-6658-0 , p. 94; Gangolf Hess, The "Wrapped Reichstag" and § 59 Abs. 1, S. 1 UrhG: What remains ?, in: Bernward Zollner and Uwe Fitzner (eds.), Festschrift for Wilhelm Nordemann, Nomos, Baden-Baden 1999, ISBN 3 -7890-6024-0 , pp. 89-98, here p. 95; Thomas Höhne, Architecture and Copyright, 2nd Edition, Manzsche Verlag- und Universitätsbuchhandlung, Vienna 2014, p. 147; Henrik Lehment, Photographing works of art, V&R Unipress, Göttingen 2008, ISBN 978-3-89971-455-5 , p. 86; Wolfgang Maaßen, photo right, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 393-520, here p. 462; Riecken, Protected Goods in the Film Set, 2011, op. Cit., P. 112 f .; Uhlenhut, Panorama Freiheit und Eigenrecht, 2015, op. Cit., P. 88. From the case law cf. LG Berlin, judgment of December 14, 1995, 16 O 532/95 = NJW 1996, 2380, 2381 - Christo II. Another view Koch, Of three-dimensional reproductions and floating works of art , 2018, op.cit., P. 205 (interest of In the case of sculptures made of ice, snow or sand or in the case of street painting with chalk, the generality of the freedom of the street scene does not "regularly" justify any restriction of the author's powers)
- ↑ In this sense Berger in Löffler, Presserecht, 6th edition 2015, UrhR, Rn. 141; Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 5; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 17; Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 5; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 4; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 23 (also in the first edition Gerstenberg in Schricker, copyright, 1st edition 1987, § 59 marginal number 5.); Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 154 f .; Ilia Czernik, Filmrecht, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 119-257, here p. 197; ders., Stealing Banksy - Real Estate Law Challenges through Street Art, in: Zeitschrift für Immobilienrecht, 2014, No. 15, pp. 551–555, here p. 555 (general for street art, as it is even a general characteristic); Kelp, Freedom of Panorama in Copyright , 2017, op.cit., P. 163; Wolfgang Maaßen, photo right, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 393-520, here p. 462; Daniel Rassouli, Banksy and its copyright. An inventory of the protection of the art form street art by copyright using the example of Banksy, in: Kunst und Recht, 15, Nr. 3/4, 2013, pp. 97-101, here p. 99 (for imposed stencil art - so-called stencils - on building facades); Riecken, Protected Goods in the Film Set, 2011, op. Cit., P. 115; Uhlenhut, freedom of panorama and property rights, 2015, op.cit., P. 90 f. (privileged as a "work in progress" that is to be evaluated like a permanent exhibition, because the author does not know how long his work will last at the time of construction). Also LG Frankfurt am Main, decision of September 3, 2018, 2-03 O 324/18 (juris, Rn. 2) approving the distribution of a graffito based on the freedom of panorama .
- ^ So Dreyer in Heidelberg Commentary on Copyright , 3rd edition 2013, § 59 Rn. 8 (no longer in the 4th edition).
- ^ On the other hand, Chirco, Die Panorama Freiheit, 2013, op.cit., P. 155.
- ↑ Permanent: Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 5 (because pasted over at the end or destroyed during acceptance); Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 17 (because "dedicated to the public for its entire 'lifetime'"; another view is probably the 2nd edition - Dreyer in Heidelberger Commentary on Copyright , 2nd edition 2009, § 59 Rn. 15 - in which the applicability for advertising and banners is denied because they are not permanently at their place of attachment after the dedication by their author); Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 4; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 170; Dreier / Spiecker called Döhmann, The systematic recording of the street scene, 2010, op. Cit., P. 27; Riecken, Protected Goods in the Film Set, 2011, op. Cit., P. 115 f. (Advertising is intended to reach as large an audience as possible; even after it has been removed, the advertising is "still dedicated to the general public", which is why "street advertising is permanently dedicated to the general public and therefore permanent within the meaning of Section 59 UrhG"). Not permanent: Vogel in Schricker / Loewenheim, copyright, 5th edition 2017, § 59 Rn. 24 (also in the first edition Gerstenberg in Schricker, Copyright, 1st edition 1987, § 59 Rn. 5); Ernst, On the freedom of panorama of copyright, 1998, op. Cit., P. 477; Wolfgang Maaßen, photo right, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 393-520, here p. 462 (limited in time from the start and therefore not permanent).
- ↑ In this sense Berger in Löffler, Presserecht, 6th edition 2015, UrhR, Rn. 142; Czychowski in Fromm / Nordemann, copyright, 12th edition 2018, § 59 UrhG Rn. 8th; Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 5; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 18; Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 16; Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 5; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 5; Lutz in Bisges, Handbook Copyright, 1st edition 2016, p. 310, Rn. 512; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 4; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 24 (also in the first edition Gerstenberg in Schricker, Copyright, 1st edition 1987, § 59 Rn. 5); Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 169; Dreier / Spiecker called Döhmann, The systematic recording of the street scene, 2010, op. Cit., P. 27; Ernst, On the freedom of panorama of copyright, 1998, op. Cit., P. 480; Thomas Höhne, Architecture and Copyright, 2nd Edition, Manzsche Verlag- und Universitätsbuchhandlung, Vienna 2014, p. 147; Henrik Lehment, Photographing works of art, V&R Unipress, Göttingen 2008, ISBN 978-3-89971-455-5 , p. 86; Horst Locher, The Law of Fine Art, Karl Thiemig, Munich 1970, p. 98; from the case law cf. for example LG Berlin, judgment of December 14, 1995, 16 O 532/95 = NJW 1996, 2380, 2381 - Christo II. As a result for shop windows also from Gamm, Copyright Law, 1968, § 59 Rn. 2 and von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op.cit., P. 110 (which, contrary to prevailing opinion, make the applicability fail because of the publicity criterion because the works are in buildings and therefore from the outset are not recorded); see also Henrik Lehment, The photographing of art objects, V&R Unipress, Göttingen 2008, ISBN 978-3-89971-455-5 , p. 86 (“already doubtful because the works are inside buildings”).
- ↑ Another view in advance of the decision complex Wrapped Reichstag still Benno H. Pöppelmann, Wrapped Reichstag , in: Journal for Copyright and Media Law , No. 4, 1996, p. 293-300, here p. 298 ff., To that extent Gerhard again Pfennig, Christo and § 59 - the discussion about what remains , in: Journal for Copyright and Media Law , No. 8/9, 1996, p. 658–659, here p. 659, contradict; also rejecting the relevance of the end of the work Gangolf Hess, The "Wrapped Reichstag" and § 59 Abs. 1, S. 1 UrhG: What remains ?, in: Bernward Zollner and Uwe Fitzner (eds.), Festschrift für Wilhelm Nordemann, Nomos, Baden -Baden 1999, ISBN 3-7890-6024-0 , pp. 89-98, here pp. 93 f.
- ↑ BGH, judgment of January 24, 2002, I ZR 102/99 = BGHZ 150, 6, 12 - Wrapped Reichstag.
- ↑ Von Gamm, Copyright Law, 1968, § 59 Rn. 3; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 25; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 149; Uhlenhut, freedom of panorama and property rights, 2015, op.cit., P. 86.
- ↑ Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 6; von Gamm, Copyright Law, 1968, § 59 Rn. 3; Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 21; Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 7; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 12; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 6; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 5; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 28; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 190; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op.cit., p. 113.
- ↑ See only Loewenheim in Schricker / Loewenheim, Copyright, 5th edition 2017, § 16 Rn. 9, 18 f., With further evidence.
- ↑ See for example BGH, judgment of June 5, 2003, I ZR 192/00 = GRUR 2003, 1035, 1036 - Hundertwasser-Haus.
- ↑ Von Ungern-Sternberg in Schricker / Loewenheim, Copyright, 5th edition 2017, § 19a Rn. 54.
- ↑ Von Ungern-Sternberg in Schricker / Loewenheim, Copyright, 5th edition 2017, § 19 Rn. 61.
- ↑ Official justification, BT-Drs. 4/270 of March 23, 1962, p. 76; BGH, judgment of March 9, 1989, I ZR 54/87 = NJW 1989, 2251, 2252 - Friesenhaus ; BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 21; BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 16; general view, cf. only Czychowski in Fromm / Nordemann, copyright, 12th edition 2018, § 59 UrhG Rn. 10; Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 1; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 14; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 12; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 5; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 26; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 203; Ernst, On the freedom of panorama of copyright, 1998, op. Cit., P. 475; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op.cit., p. 107.
- ↑ BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 29 ff .; Czychowski in Fromm / Nordemann, copyright, 12th edition 2018, § 59 UrhG Rn. 9; Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 7; Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 18; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 13; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 6; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 6; Schack, Copyright and Copyright Contract Law, 8th edition 2017, Rn. 567; Ulmer, Copyright and Publishing Law, 3rd edition 1980, p. 332; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 2, 26; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 178; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op. cit., p. 112; Kelp, Freedom of Panorama in Copyright , 2017, op.cit., P. 163; Henrik Lehment, Photographing art objects, V&R Unipress, Göttingen 2008, ISBN 978-3-89971-455-5 , p. 84; Angelika Moser, Personal Manufacturing and Copyright - “3D Printing” in the Private Environment, Heymanns, Cologne 2015, ISBN 978-3-452-28588-1 , p. 169 f .; Poeppel, The reorganization of copyright barriers in the digital environment, 2005, op. Cit., P. 418 f .; Riecken, Protected Goods in the Film Set, 2011, op. Cit., P. 117 ff .; Uhlenhut, Panoramafreedom and Property Rights, 2015, op.cit., P. 94.Skeptisch Koch, Von three-dimensional reproductions and floating works of art , 2018, op.cit., P. 201, because such a restriction is at least not expressly found in Union law .
- ↑ BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 30th
- ↑ Winfried Bullinger, Latest News from Copyright: 3D Printing as a Copyright Challenge , in: Mitteilungen der deutschen Patentanwälte , Vol. 107, No. 5, 2016, pp. 215–217, here p. 117.
- ↑ So Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 201; Angelika Moser, Personal Manufacturing and Copyright - “3D Printing” in the Private Environment, Heymanns, Cologne 2015, ISBN 978-3-452-28588-1 , p. 169 f.
- ↑ BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 31 ff.
- ↑ BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 32.
- ^ So von Gamm, Copyright Law, 1968, § 59 Rn. 3 (albeit with doubts as to its compatibility with the purpose of the standard); von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op.cit., p. 113.
- ^ Against Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 28 (also in the first edition Gerstenberg in Schricker, copyright, 1st edition 1987, § 59 marginal number 8); Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 192 f .; Fabian Heß, The television transmission of events on public streets and squares with special consideration of copyright aspects, LIT, Münster 2003, ISBN 3-8258-6658-0 , p. 92 f .; Nikolaus Reber, case groups of permitted use of pre-existing works, in: Holger von Hartlieb and Mathias Schwarz (eds.), Handbook of Film, Television and Video Law, 5th edition, Beck, Munich 2011, ISBN 978-3-406-58219- 6 , pp. 211-214, here para. 5; Uhlenhut, freedom of panorama and property rights, 2015, op.cit., P. 100 f.
- ↑ So now explicitly BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 21; BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 19. Another view in the literature still Dreyer in Heidelberg Commentary on Copyright , 3rd Edition 2013, § 59 Rn. 10, 13 (abandoned in the 4th edition), because the digital preparatory action required to make it available on the Internet (here: storage on a server) does not take place “with means of painting or graphics, by photo or film”, which is why even without Making publicly available, including copying onto hard drives or CD-ROMs, should not be covered. In contrast, however, the prevailing opinion, cf. Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 5 (recorded as a preparatory act for making it publicly available); Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 27; Chirco, Die Panorama Freiheit, 2013, op. Cit. P. 191; Dreier / Spiecker called Döhmann, The systematic recording of the street scene, 2010, op. Cit., P. 23 (counter-view “too much attached to the wording of the regulation”); Michael Gey, The Right to Make Public Accessible i. S. d. § 19a UrhG , Boorberg, Stuttgart 2009, ISBN 978-3-415-04208-7 , p. 123; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op. cit., p. 113; Koch, Of three-dimensional reproductions and floating works of art , 2018, op. Cit., P. 201; Katharina Ziegler, copyright infringement through social sharing. Copyright and liability aspects of social networks using the example of the Facebook platform , Mohr Siebeck, Tübingen 2016, ISBN 978-3-16-154801-7 , p. 175 f. (express permission for public reproduction necessarily requires further reproduction on storage medium); without further justification based on usability on the Internet Bernd Lorenz, declarations of consent in photo law , in: Kommunikation und Recht , Vol. 19, No. 7/8, 2016, pp. 450–456, here p. 454; Stefan Ernst, note concerning BGH, judgment of 24 January 2002, I ZR 102/99, in: Monthly Journal of German law . 2002, No. 13, p 772 ( "digital photography or scanning existing pictures as well [...] how their online presence "is recorded).
- ↑ BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 25; BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 20; Koch, Of three-dimensional reproductions and floating works of art , 2018, op.cit., P. 200.
- ↑ Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 11; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 6; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 6; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 26 (regarding the photographic works "Redaktionsversehen"; also in the first edition Gerstenberg in Schricker, copyright, 1st edition 1987, § 59 marginal number 6); Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 179 f .; Koch, Of three-dimensional reproductions and floating works of art , 2018, op. Cit., P. 200; Uhlenhut, Panoramafreedom and Property Rights, 2015, op. Cit., P. 94. For the history of the editing errors in the photographic works cf. Chirco, Die Panorama Freiheit, 2013, op.cit., P. 179 f.
- ↑ BGH, judgment of June 5, 2003, I ZR 192/00 = GRUR 2003, 1035, 1037 - Hundertwasser-Haus; LG Hamburg, judgment of January 10, 2012, 311 O 301/10 = ZUM 2012, 819, 821; also Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 8th; Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 9; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 14; Lüft in Wandtke / Bullinger, copyright, 4th edition 2014, § 59 Rn. 3; Obergfell in Büscher / Dittmer / Schiwy, industrial property rights, 3rd edition 2015, § 59 UrhG Rn. 6; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 31 (also in the first edition Gerstenberg in Schricker, copyright, 1st edition 1987, § 59 marginal number 10); Wanckel, Photo and Image Rights, 5th edition 2017, Rn. 92; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 196 ff .; Ilja Czernik, Building Photography - Undreamt-of Legal Challenges, in: Zeitschrift für Immobilienrecht, 2015, No. 7, pp. 242–249, here p. 247; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op. cit., p. 112; Wolfgang Maaßen, photo right, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 393-520, here p. 463. Also von Gamm, Copyright Law, 1968, § 59 Rn. 4; from the case law cf. also LG Hamburg, judgment of January 10, 2012, 311 O 301/10 = ZUM 2012, 819, 821.
- ↑ In this sense Dreyer in Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 8th; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 8th; Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 9; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 196; Wolfgang Maaßen: Photo right, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 393-520, here p. 463.
- ↑ The example comes from Czychowski in Fromm / Nordemann, Copyright, 12th edition 2018, § 59 UrhG Rn. 12.
- ↑ Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 32.
- ↑ So Grübler in Ahlberg / Götting, BeckOK Copyright, as of July 1, 2016, § 59 Rn. 10; Kirchmaier in Mestmäcker, copyright, status: 55th AL 2011, § 59 Rn. 15; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 32 (also in the first edition Gerstenberg in Schricker, Copyright, 1st edition 1987, § 59 Rn. 11); Chirco, Die Panorama Freiheit, 2013, op.cit., P. 202 f. Different view Gass in Möhring / Nicolini, Copyright Act, 2nd edition 2000, § 59 Rn. 23; Lothar Müller, The Architect's moral right in German and Austrian law, Beck, Munich 2004, ISBN 3-406-52290-4 , p. 110.
- ↑ Dustmann im Fromm / Nordemann, Copyright, 11th edition 2014, § 63 Rn. 14; restrictive Dietz / Spindler in Schricker / Loewenheim, copyright, 5th edition 2017, § 63 Rn. 19: not a “traffic custom on the Internet”, but depending on the custom in the respective online industry.
- ^ LG Frankfurt am Main, decision of September 3, 2018, 2-03 O 324/18 (juris, Rn. 1 ff.).
- ↑ See already § 63 Abs. 1, S. 2: "next to the author". In detail cf. Bullinger in Wandtke / Bullinger, Copyright, 4th edition 2014, § 59 Rn. 12; Dietz / Spindler in Schricker / Loewenheim, Copyright, 5th edition 2017, § 63 Rn. 13; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 63 Rn. 10. Different view AG Baden-Baden, judgment of October 31, 1990, 6 C 157/90 = Schulze, case law on copyright, AGZ 28, which made the surname suffice.
- ↑ Dietz / Spindler in Schricker / Loewenheim, Copyright, 5th edition 2017, § 63 Rn. 13; Dustmann im Fromm / Nordemann, Copyright, 12th edition 2018, § 63 Rn. 7th
- ↑ Dietz / Spindler in Schricker / Loewenheim, Copyright, 5th edition 2017, § 63 Rn. 14th
- ↑ See for example OLG Hamburg, judgment of September 27, 1973, 3 U 38/73 = GRUR 1974, 165, 166 - garden gate, which in the case of an artfully designed garden gate considered naming the author to be sufficient. See also Dietz / Spindler in Schricker / Loewenheim, Copyright, 5th Edition 2017, § 63 Rn. 15 (Indication of the mere name of the author is sufficient if the author is named or known at all); Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 63 Rn. 10 (in the case of works of fine art that are set up in the open air, usually only the author's designation is required) restrictive Dustmann in Fromm / Nordemann, copyright, 12th edition 2018, § 63 Rn. 8 (author's name and work title required, if the affix is permanent, information on the place of issue may also be required).
- ↑ Cf. for example Dreyer in Heidelberger Commentary on Copyright , 4th edition 2018, § 63 Rn. 10 (for works of architecture, the location and possibly its function or designation will be required); unclear Dietz / Spindler in Schricker / Loewenheim, copyright, 5th edition 2017, § 63 Rn. 15th
- ↑ In this sense Vogel in Schricker / Loewenheim, copyright, 5th edition 2017, § 59 Rn. 30; similar to Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 59 Rn. 20 (no information required, if not indicated by name and not to be found “otherwise with reasonable effort”); Daniel Rassouli, Banksy and its copyright. An inventory of the protection of the art form street art by copyright using the example of Banksy, in: Kunst und Recht, 15, No. 3/4, 2013, pp. 97–101, here p To make reasonable efforts to find out the source and, if necessary, to undertake research activities ”). See also von Gamm, Copyright Law, 1968, § 59 Rn. 5: reasonable inquiries are to be made (for example, inspection of literary dictionaries, relevant manuals or similar). Another view Riecken, Protected goods in the film set, 2011, op. Cit., P. 121 f. (Obligation to be named only if the copyright is attached to the work).
- ↑ Dietz / Peukert in Schricker / Loewenheim, Copyright, 5th edition 2017, § 62 Rn. 9 ff .; Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 62 Rn. 6, 12.
- ↑ Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 11; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 29; Chirco, Die Panorama Freiheit, 2013, op.cit., P. 207. In some cases, the justification is also derived directly from Section 39 (2) UrhG with the argument that exploitation would otherwise not be possible, e.g. Bullinger in Wandtke / Bullinger , Copyright, 4th edition 2014, § 62 Rn. 21. For the applicability also to scientific-technical works Dietz / Peukert in Schricker / Loewenheim, Copyright, 5th edition 2017, § 62 Rn. 21; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, § 62 Rn. 16; A. Nordemann in Fromm / Nordemann, Copyright, 12th edition 2018, § 62 Rn. 10; Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 62 Rn. 19; .
- ↑ According to BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 40.
- ↑ BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 41; von Gamm, Copyright Law, 1968, § 59 Rn. 3; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 27; Chirco, Die Panorama Freiheit, 2013, op. Cit., Pp. 195 f .; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op.cit., p. 108.See also LG Frankfurt am Main, decision of September 3, 2018, 2-03 O 324/18 (juris, Rn 2) (Distribution of a section from a graffito permitted).
- ↑ BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 41. See, however, even for exposing a complete work, Hirsch Ballin, Zur Freiheit des Straßenbildes , 1957, op. Cit., P. 10: “encroachment” of the general public into the exclusive right of the author through isolated reproduction of a participating work the "panorama as [...] closed [m] whole".
- ↑ BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 43.
- ↑ OLG Cologne, judgment of March 9, 2012, 6 U 193/11 = ZUM-RD 2012, 593, 595 - love your city; likewise the lower court LG Cologne, judgment of 6 September 2011, 33 O 349/11 (change neither insignificant nor brought about by the procedure used for the reproduction).
- ^ LG Mannheim, judgment of February 14, 1997, 7 S 4/96 = GRUR 1997, 364, 366 - Freiburger Holbein horse.
- ^ LG Mannheim, judgment of February 14, 1997, 7 S 4/96 = GRUR 1997, 364, 366 - Freiburger Holbein horse.
- ↑ For example Czychowski in Fromm / Nordemann, Copyright, 12th edition 2018, § 59 UrhG Rn. 11 (because in any case the prohibition of distortion according to § 14 UrhG is directed against everyone, including those who only exploit a distortion committed by third parties); Haimo Schack, Art and Law, 3rd edition, Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155037-9 , Rn. 288; Wanckel, Photo and Image Rights, 5th edition 2017, Rn. 95; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 219 f .; Ernst, on the freedom of panorama of copyright, 1998, op. Cit., P. 479 (protected integrity interests of the author must not be undermined by § 59 UrhG). Also affirming the relevance of § 14 UrhG: Stefan Haupt, The Art Market and Copyright , in: Andrea Hausmann (Ed.), Handbook Art Market. Actors, Management and Mediation , transcript, Bielefeld 2014, ISBN 978-3-8376-2297-3 , pp. 321–345, here p. 336 (which also denies the permanent character: each and every one of the constantly changing paintings on the horse for itself taken not staying in a public place); Daniel Rassouli, Banksy and its copyright. An inventory of the protection of the art form street art by copyright using the example of Banksy, in: Kunst und Recht, 15, No. 3/4, 2013, pp. 97–101, here p. 100; Uhlenhut, Panorama Freiheit und Eigenrecht, 2015, op. Cit., P. 103; probably also Schulze in Dreier / Schulze, Copyright Act, 6th edition 2018, § 62 Rn. 18th
- ↑ BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 18 (“if necessary in individual cases”); Czychowski in Fromm / Nordemann, copyright, 12th edition 2018, § 59 UrhG Rn. 4; Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 9; von Gierke, Die Freiheit des Straßenbildes (§ 59 UrhG), 2002, op. cit., p. 108; Koch, Of three-dimensional reproductions and floating works of art , 2018, op. Cit., P. 198; Gerald Spindler, The Modernization of European Copyright Law. The proposal for the Portability Regulation and the plans of the EU Commission , in: Computer und Recht , vol. 32, no. 2, 2016, pp. 73–81, here p. 78.
- ↑ BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 20; BGH, judgment of April 27, 2017, I ZR 247/15 = GRUR 2017, 798 - AIDA Kussmund , Rn. 18. So also Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 12; Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 107 ff .; Poeppel, The Reorganization of Copyright Barriers in the Digital Environment, 2005, op. Cit., P. 417; Riecken, Schutzgüter in der Filmkulisse, 2011, op. Cit., P. 110. On this critically, Koch, Von three-dimensional duplications and floating works of art , 2018, op. Cit., P. 199 (multiple deviations).
- ↑ Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 12; Critically Chirco, Die Panorama Freiheit, 2013, op.cit., p. 113.
- ↑ Chirco, Die Panorama Freiheit, 2013, op.cit., P. 113 f.
- ↑ BGH, judgment of October 13, 1965, Ib ZR 111/63 = BGHZ 44, 288, 293 f. - Apple Madonna ; BGH, judgment of March 9, 1989, I ZR 54/87 = NJW 1989, 2251, 2252 - Friesenhaus ; Czychowski in Fromm / Nordemann, copyright, 12th edition 2018, § 59 UrhG Rn. 16.
- ^ BGH, judgment of March 9, 1989, I ZR 54/87 = NJW 1989, 2251, 2252 - Friesenhaus .
- ^ BGH, judgment of September 20, 1974, I ZR 99/73 = GRUR 1975, 500, 502 - Tegel Castle .
- ↑ BGH, judgment of December 17, 2010, V ZR 46/10 = ZUM 2011, 333, 335 - Prussian gardens and parks I, Rn. 15; BGH, judgment of March 1, 2013 = GRUR 2013, 623 - Prussian gardens and parks II, Rn. 16, 19. Approving Benedikt Flöter and Martin Königs, violation of the right to the property-internal image of one's own thing and transferability of the triple damage calculation to tortious claims for damages from property infringement, in: Journal for Copyright and Media Law, 56, No. 5, 2012, p. 383-389, here pp. 384-387; Andreas Schabenberger, Gleiss Lutz and Heinrich Nemeczek, My castle, my garden, my sales proceeds? - Consequences from the BGH decisions “Prussian Palaces and Gardens”, in: Commercial legal protection and copyright, practice in intellectual property and competition law (GRUR-Prax), 3, No. 7, 2011, pp. 139–142. Rejecting Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 14; Henrik Lehment, comments on BGH, judgment of December 17, 2010 - V ZR 45/10 - Prussian gardens and parks, in: Commercial legal protection and copyright, 113, No. 4, 2011, pp. 327–328; Wolfgang Maaßen, photo right, in: Artur-Axel Wandtke and Claudia Ohst (eds.), Medienrecht Praxishandbuch, 5 vols., 2, 3rd edition 2014, ISBN 978-3-11-031413-7 , pp. 393-520, here pp. 472–476; Haimo Schack, Anmerkung, in: JuristenZeitung, 66, No. 7, 2011, pp. 375–376; Malte Stieper, comment on BGH, judgment of December 17, 2010 - V ZR 45/10, in: Journal for Copyright and Media Law, 55, No. 4, 2011, pp. 331–333, here pp. 332 f .; Uhlenhut, Panoramafreedom and Property Rights, 2015, op.cit., P. 188 ff. Previously already rejecting the BGH's position in this regard Winfried Bullinger, Works of art in museums - the cliff-rich image evaluation, in: Rainer Jacobs, Hans-Jürgen Papier and Peter-Klaus Schuster (Ed.), Festschrift for Peter Raue. On his 65th birthday on February 4, 2006, Heymanns, Cologne 2006, ISBN 3-452-26141-7 , pp. 379–400, here pp. 392 f .; Henrik Lehment, Photographing objects of art, V&R Unipress, Göttingen 2008, ISBN 978-3-89971-455-5 , p. 102 ff .; Steinbeck, Mein Haus bei Google Street View, 2010, op. Cit., P. 369 f. Czychowski in Fromm / Nordemann, Copyright, 12th edition 2018, § 59 UrhG Rn. 16–19 and Endress Wanckel, On the way to “right to the picture of one's own thing” ?, in: Neue Juristische Wochenschrift, 64, No. 17, 2011, pp. 1779–1781, here pp. 1179 f.
- ↑ BGH, judgment of December 17, 2010, V ZR 46/10 = ZUM 2011, 333, 334 - Prussian gardens and parks I, Rn. 19th
- ↑ In this sense JB Nordemann in Fromm / Nordemann, copyright, 12th edition 2018, § 44 marginal no. 12 (since the public exhibition according to § 59 UrhG goes hand in hand with extensive losses of the monopoly of use); Vogel in Schricker / Loewenheim, copyright, 5th edition 2017, § 44 marginal no. 19. Another view of Riecken, Protected goods in the film set, 2011, op. Cit., P. 102 f .; Lisa Wiesner, The rights of the visual artist after the sale of the workpiece, Heymanns, Munich 2008, ISBN 978-3-452-26827-3 , p. 65 (restriction only result-oriented, dogmatic but not to be justified); probably also Chirco, Die Panorama Freiheit, 2013, op. cit., p. 74 f.
- ^ BGH, judgment of April 7, 2011, I ZR 56/09 = GRUR 2011, 1117 - ICE , Rn. 29 (still on Section 38 (1) Design Law); Eichmann in Eichmann / von Falckenstein / Kühne, Design Act , 5th edition 2015, § 38 Rn. 60.
- ↑ Dreier / Spiecker gen. Döhmann, The systematic recording of the streets, 2010, op. Cit., P. 29; Stieper, The freedom of the street image in copyright and design law , 2017, op.cit., P. 771.
- ↑ In this sense Gernot Schulze, Works and Samples in Public Places. Do copyright restrictions also apply in design law? , in: Hans-Jürgen Ahrens, Joachim Bornkamm and Hans P. Kull-Hallstein (eds.), Festschrift for Eike Ullmann , Juris, Saarbrücken 2006, ISBN 978-3-938756-10-2 , pp. 93-110, here P. 102 ff.
- ↑ Stieper, The freedom of the street image in copyright and design law , 2017, op.cit., P. 771 f. See also Dreier / Spiecker gen. Döhmann, The systematic recording of the streets, 2010, op. Cit., P. 29 f.
- ^ So again explicitly BGH, judgment of January 19, 2017, I ZR 242/15 = GRUR 2017, 390 - East Side Gallery , Rn. 21st
- ^ Gerhard Schricker, Paul Katzenberger, Thomas Dreier and Silke von Lewinski, copyright on the way to the information society, Nomos, Baden-Baden 1997, ISBN 3-7890-4718-X , pp. 171, 180. Critical to the restriction to multimedia works: Poeppel , The reorganization of the copyright barriers in the digital environment, 2005, op. Cit., P. 418 (probably not meant literally because the interest in exemption should not be linked to the exploiter's own creative activity).
- ↑ Poeppel, The Reorganization of Copyright Barriers in the Digital Environment, 2005, op.cit., P. 420.
- ↑ For example Chirco, Die Panorama Freiheit, 2013, op. Cit., P. 237 ff .; Adolf Dietz, The development of copyright in Germany from 1993 to mid-1997, in: UFITA, 136, 1998, pp. 5–101, here p. 73; Dreier / Spiecker called Döhmann, The systematic recording of the street scene, 2010, op. Cit., Pp. 118 f .; Gernot Schulze, Works and Samples in Public Places - Do copyright barriers also apply in design law ?, in: Hans-Jürgen Ahrens u. a. (Ed.), Festschrift for Eike Ullmann, Juris, Saarbrücken 2006, ISBN 3-938756-10-1 , pp. 93–110, here p. 98; ders., Desiderata of Copyright Regulation Today , in: Journal for Copyright and Media Law , Vol. 62, No. 4, 2018, pp. 242–248, here p. 247; probably three in three / Schulze, Copyright Act, 6th edition 2018, § 59 Rn. 1 ("could however be considered").
- ↑ BVerfG, judgment of 7 July 1971, 1 BvR 765/66 = BVerfGE 31, 229 - school book privilege .
- ↑ Dreier / Spiecker gen. Döhmann, The systematic recording of the street scene, 2010, op. Cit., P. 118 f.
- ^ Final report of the study commission "Culture in Germany", BT-Drs. 16/7000 of December 11, 2007, p. 267.
- ^ Final report of the study commission "Culture in Germany", BT-Drs. 16/7000 of December 11, 2007, p. 264. See also Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 3. Rejecting both arguments Uhlenhut, Panorama Freiheit und Eigenrecht, 2015, op. Cit., P. 133.
- ↑ German Cultural Council, the exploitation of works of art in public space must finally be remunerated , April 25, 2008, accessed on December 30, 2014 ( kulturrat.de ( memento of December 30, 2014 in the Internet Archive )).
- ↑ Brigitte Zypries, Art and Culture in Germany, in: Politik und Kultur, May – June 2008, p. 9 (also online [PDF file, 5.2 MB], accessed on December 30, 2014 - kulturrat.de ( Memento of December 30, 2014 in the Internet Archive )).
- ^ German Association of Judges, Statement of the DRB on the revision of copyright law , June 2009, accessed on September 23, 2015 ( drb.de ( memento of September 23, 2015 in the Internet Archive )).
- ↑ http://www.pro-panoramafreiheit.de/ , accessed on December 22, 2014. For the background also the German Association of Journalists, Panorama Freiheit: Free Photography in Danger , April 30, 2008, accessed on December 30, 2014 ( photo journalists. djv-online.de ( Memento from December 30, 2014 in the Internet Archive )).
- ^ Josef Schmidl: The Austrian copyright law on works of literature, art and photography. Publisher von Duncker & Humblot, Leipzig 1906, p. 12.
- ↑ The government draft , including explanatory remarks, is printed as No. 142 of the enclosures to the manor's stenographic minutes. In: Stenographic minutes of the meetings of the manor house of the Austrian Imperial Council in the years 1891 to 1897. Vienna 1897 (digitized via Austrian National Library, alex.onb.ac.at ).
- ↑ No. 142 of the supplements to the stenographic minutes of the manor house, in: Stenographic minutes of the meetings of the manor house of the Austrian Reichsrath in the years 1891 to 1897. Vienna 1897, p. 35 (digitized via Austrian National Library, alex.onb.ac. at ).
- ↑ Printed in: Stenographic minutes of the meetings of the manor house of the Austrian Reichsrath in the years 1891 to 1897. Vienna 1897, p. 285 (digitized via Austrian National Library, alex.onb.ac.at ).
- ^ Josef Schmidl: The Austrian copyright law on works of literature, art and photography. Publisher von Duncker & Humblot, Leipzig 1906, p. 17.
- ↑ The Explanatory Notes are printed as No. 271 of the supplements to the shorthand records of the manor house. In: Stenographic minutes of the meetings of the manor house of the Austrian Imperial Council in the years 1891 to 1897. Vienna 1897 (digitized via Austrian National Library, alex.onb.ac.at ).
- ↑ On the progress of the deliberations cf. Josef Schmidl: The Austrian copyright law on works of literature, art and photography. Publisher von Duncker & Humblot, Leipzig 1906, p. 17 f.
- ↑ Printed in the State Law Gazette for the Republic of Austria, 1920, pp. 1367 ff. [No. 325] (digitized via Austrian National Library, alex.onb.ac.at ).
- ↑ Printed in the State Law Gazette for the Republic of Austria, 1920, pp. 1649 ff. [No. 417] (digitized via Austrian National Library, alex.onb.ac.at ).
- ↑ The government bill including the explanatory remarks is printed as no. 855 of the enclosures in stenographic minutes of the meetings of the constituent national assembly of the Republic of Austria. Vienna 1919, Volume I (digitized via Austrian National Library, alex.onb.ac.at ). The reason for the amendment of the previous § 39 Z. 4 UrhG [1895] can be found on p. 30 f. (Digitized via Austrian National Library, alex.onb.ac.at ).
- ↑ In the following quoted from Kucsko: The freedom of the streetscape. 1986, op.cit., P. 126.
- ↑ "Insofar as a work may be reproduced according to this, the commercial distribution of the reproductions, public seduction and broadcasting by radio is also permitted." (Section 42, line 4)
- ↑ Printed in: Federal Law Gazette for the Federal State of Austria. 1936, p. 131 ff. [No. 111] (digitized via Austrian National Library, alex.onb.ac.at ). The government draft and the explanatory remarks are printed as No. 64 / Ge of the enclosures in: Stenographic minutes of the sessions of the Bundestag of the Federal State of Austria. 1934-1936. 1st to 31st session. Vienna 1937 (digitized via Austrian National Library, alex.onb.ac.at ). On the above cf. there, p. 20 f. (Digitized via Austrian National Library, alex.onb.ac.at ) and Kucsko: The freedom of the street scene. 1986, op.cit., P. 126.
- ↑ Kucsko: The freedom of the street scene. 1986, op.cit., P. 126.
- ↑ No. 64 / Ge of the supplements in stenographic minutes of the sessions of the Bundestag of the federal state of Austria. 1934-1936. 1st to 31st session. Vienna 1937, p. 73 (digitized via Austrian National Library, alex.onb.ac.at ).
- ↑ Kucsko: The freedom of the street scene. 1986, op. Cit., P. 131, with further references.
- ↑ Materials on the federal law amending the Copyright Act (Copyright Law Amendment 2003 - UrhG-Nov 2003) (PDF file, 2.6 MB), accessed on November 14, 2014.
- ↑ Müller, The moral right of architects in German and Austrian law, 2004, op.cit., P. 101.
- ↑ Walter, Austrian Copyright, 2008, Rn. 1327; Zemann in Kucsko / Handig, copyright , 2nd edition 2017, § 54 Rn. 54.
- ↑ Ciresa in ders., Austrian copyright law, status: 19th EL 2017, § 54 Rn. 56; Walter, Austrian Copyright, 2008, Rn. 1327; Zemann in Kucsko / Handig, copyright , 2nd edition 2017, § 54 Rn. 54.
- ↑ Walter, Austrian Copyright, 2008, Rn. 1327; Zemann in Kucsko / Handig, copyright , 2nd edition 2017, § 54 Rn. 55; also approached by Ciresa in ders., Austrian copyright law, status: 19th EL 2017, § 54 Rn. 56, who nonetheless comes to the conclusion, with arguments based on house law, that the buildings must be “freely visible from public land”. Skeptical with regard to the compatibility of this interpretation under union and convention law Müller, The moral right of the architect in German and Austrian law, 2004, op. Cit., P. 103 (before the implementation of the UrhG amendment 2003).
- ^ OGH, decision of September 12, 1989, 4 Ob 106/89 - Adolf Loos I; OGH, decision of April 26, 1994, 4 Ob 51/94 - Hundertwasserhaus I.
- ^ OGH, decision of September 12, 1989, 4 Ob 106/89 - Adolf Loos I.
- ^ OGH, decision of September 12, 1989, 4 Ob 106/89 - Adolf Loos I; OGH, decision of July 12, 1994, 4 Ob 80/94 - glass windows. Kucsko, Die Freiheit des Straßenbildes, 1986, op. Cit., P. 131; agreeing to this: Höhne, Architektur und Copyright, 2014, op. cit., p. 142; Gunter Nitsche and Günther Sammer, copyright in construction , in: Austrian Society for Construction Law and Austrian Institute for Construction Law (ed.), Current information on construction and procurement law: Festschrift for the 30th anniversary of the Austrian Society for Construction Law , Manz, Vienna 2008, ISBN 978-3-214-07401-2 , pp. 275–289, here p. 288. Now predominant opinion, cf. Ciresa in ders., Austrian copyright law, as of: 19th EL 2017, § 54 Rn. 57; Dittrich, Austrian and international copyright law, 6th edition 2012, § 54 Rn. E15; Zemann in Kucsko / Handig, copyright , 2nd edition 2017, § 54 Rn. 56.
- ↑ For example Walter, Austrian Copyright, 2008, Rn. 1328; Müller, The moral right of architects in German and Austrian law, 2004, op. Cit., P. 109 f. (On this again, critical Höhne, Architektur und Copyright, 2014, op.cit., p. 141 f.). Hans Hoyer, Is it advisable to restrict the free use of works compared to the current legal situation ?, in: Österreichische Blätter für industrial legal protection and copyright, May-June 1971, pp. 62-72, here pp. 71: not applicable to interiors of buildings and interior fittings. Unclear Clemens Thiele, Prominentenhäuser, Panorama Freedom and Personal Protection , in: Building law sheets, vol. 10, no. 6, 2007, pp. 214–217, doi : 10.1007 / s00738-007-0283-0 , here p. 215, the one hand claims that the exploitation powers only extended to the external appearance of buildings, but later the "h [prevailing] opinion" was reported uncritically, according to which the barrier regulation also included "works of interior design including artificial lighting, furniture and installation special facilities ”.
- ^ So by Zemann in Kucsko / Handig, copyright law , 2nd edition 2017, § 54 Rn. 58 (questionable whether the Supreme Court rulings can be maintained even after the InfoSoc directive has been implemented); Martin Trapichler, Interior Design as a Work of Building Art , in: ipCompetence , Vol. 11, 2014, pp. 44–55, here pp. 51 f.
- ^ OGH, decision of September 12, 1989, 4 Ob 106/89 - Adolf Loos I.
- ^ OGH, decision of September 12, 1989, 4 Ob 106/89 - Adolf Loos I; OGH, decision of July 12, 1994, 4 Ob 80/940 - glass windows.
- ^ OGH, decision of July 12, 1994, 4 Ob 80/94 - glass window. The lower court Graz Higher Regional Court, decision of April 7, 1994, 6 R 46 / 94-10.
- ^ OGH, decision of July 12, 1994, 4 Ob 80/94 - glass window. Rejecting Höhne, Architecture and Copyright, 2014, op. Cit., P. 142: the concrete content of glass windows cannot normally be recognized when viewed from the outside.
- ↑ See the section " Germany, criterion 'permanent' ". See Zemann in Kucsko / Handig, copyright , 2nd edition 2017, § 54 marginal no. 60.
- ↑ Walter, Austrian Copyright, 2008, Rn. 1329; Zemann in Kucsko / Handig, copyright , 2nd edition 2017, § 54 Rn. 61; Kucsko, Die Freiheit des Straßenbildes, 1986, op. Cit., P. 127 f .; Jakob Altschul and Gottlieb Ferdinand Altschul, Explanations on the Austrian Copyright Act of December 26, 1895, Manz, Vienna 1904, p. 149 for the UrhG [1895]; in this sense also Müller, The moral right of architects in German and Austrian law, 2004, op.cit., p. 103 ff. See also Ciresa in ders., Austrian copyright, as of: 19th EL 2017, § 54 Rn. 58: A place that is for common use and is freely accessible to everyone. For the government's considerations, see the section on legal developments.
- ^ OGH, decision of May 31, 1988, 4 Ob 23/88 = SZ [decisions of the Austrian Supreme Court in civil matters] 61/135.
- ↑ Christian Handig, graffiti on "Leiberln" and "Häferln": Lothar Wiltschek on his 70th birthday , in: Austrian sheets for industrial property rights and copyright , vol. 67, no. 4a, 2018, p. 157 (if the graffiti is obviously illegal but probably no longer permanent, since in this case the elimination is foreseeable).
- ↑ Photographs not recorded: Handig, In Focus of the Drone , 2015, op. Cit., P. 529 (so that, for example, when depicting a permanently attached photo advertising poster, the freedom of depiction depends on whether it is protected or not); different view Ciresa in ders., Austrian copyright law, status: 19th EL 2017, § 54 Rn. 4; Walter, Austrian Copyright, 2008, Rn. 1281; Zemann in Kucsko / Handig, copyright , 2nd edition 2017, § 54 Rn. 59 (fn. 119), 9.
- ^ OGH, decision of April 26, 1994, 4 Ob 51/94 - Hundertwasserhaus I; Zemann in Kucsko / Handig, copyright , 2nd edition 2017, § 54 Rn. 63; Ciresa in ders., Austrian copyright law, as of: 19th EL 2017, § 54 Rn. 60; Walter, Austrian Copyright, 2008, Rn. 1324; Müller, The moral right of architects in German and Austrian law, 2004, op.cit., P. 107.
- ^ OGH, decision of April 26, 1994, 4 Ob 51/94 - Hundertwasserhaus I; Ciresa in ders., Austrian copyright law, as of: 19th EL 2017, § 54 Rn. 61; Zemann in Kucsko / Handig, copyright , 2nd edition 2017, § 54 Rn. 64; critical Walter, Austrian Copyright, 2008, Rn. 1331, which points out that a - just allowed - closely related work reproduction by Malkust regularly entails an adaptation; also Höhne, Architecture and Copyright, 2014, op.cit., p. 143.
- ↑ Supreme Court, decision of 26 April 1994, 4 Ob 51/94 - Hundertwasser House I .
- ↑ See for example OGH, decision of April 26, 1994, 4 Ob 51/94 - Hundertwasserhaus I; closer OGH, decision of February 12, 2013, 4 Ob 190 / 12p - Hundertwasserhaus II.
- ↑ Ciresa in ders., Austrian copyright law, status: 19th EL 2017, § 54 Rn. 62; Zemann in Kucsko / Handig, copyright , 2nd edition 2017, § 54 Rn. 66; Höhne, Architecture and Copyright, 2014, op.cit., P. 145.
- ↑ Ciresa in ders., Austrian copyright law, status: 19th EL 2017, § 54 Rn. 65; OGH, decision of July 12, 1994, 4 Ob 80/94 - glass windows.
- ↑ Barrelet / Egloff, The new copyright, 3rd edition 2008, Art. 27 para. 8th; Blaise Carron et al. a., The copyright of the planners, Schulthess, Zurich 2014, ISBN 978-3-7255-8505-2 , p. 128.
- ↑ Art. 30 para. 3 of the Federal Act on Copyright in Works of Literature and Art of December 7, 1922: “[Reproduction is permitted] of works of the visual arts or photography based on copies that remain on or on public roads or places. ”(Digitized via the Swiss Federal Archives, bar.admin.ch [PDF file, 0.9 MB], accessed on February 1, 2014).
- ↑ Instead of many Barrelet / Egloff, The new copyright, 3rd edition 2008, Art. 27 Rn. 3.
- ↑ Cherpillod in von Büren / David, Copyright and Related Rights, 3rd Edition 2014, Rn. 917; Dessemontet, La propriété intellectuelle et les contrats de license, 2nd edition 2011, para. 153; ders., Le droit d'auteur , 1999, op.cit, para. 505; Hilty, Copyright, 2011, para. 236; Macciacchini / Oertli in Müller / Oertli, hand commentary on the Copyright Act, 2nd edition 2012, Art. 27 Rn. 4; Rehbinder / Viganó, URG, 3rd edition 2008, Art. 27 Rn. 2; Blaise Carron et al. a., The copyright of the planners, Schulthess, Zurich 2014, ISBN 978-3-7255-8505-2 , p. 127.
- ↑ Barrelet / Egloff, The new copyright, 3rd edition 2008, Art. 27, Rn. 4; Cherpillod in von Büren / David, Copyright and Related Rights, 3rd Edition 2014, Rn. 917; Hilty, Copyright, 2011, para. 236; Macciacchini / Oertli in Müller / Oertli, hand commentary on the Copyright Act, 2nd edition 2012, Art. 27 Rn. 4th
- ↑ Cherpillod in von Büren / David, Copyright and Related Rights, 3rd Edition 2014, Rn. 917; Macciacchini / Oertli in Müller / Oertli, hand commentary on copyright law, 2nd edition 2012, Art. 27, Rn. 4; Fanny Ambühl and Stephan Beutler, photography prohibited! - On the tension between copyright and property rights in photography, in : recht, 2011, pp. 14–19, here p. 17; Rolf H. Weber, Roland Unternährer and Rena Zulauf, Swiss Film Law, Schulthess, Zurich 2003, p. 147.
- ↑ So Cherpillod in von Büren / David, Copyright and Related Rights, 3rd Edition 2014, Rn. 917; Eric Pahud, The Social Binding of Copyright , Diss., Univ. Zurich, Stämpfli, Bern 2000, p. 137. Another view Macciacchini / Oertli in Müller / Oertli, hand commentary on the Copyright Act, 2nd edition 2012, Art. 27 para. 4 (not a new category, as a general restriction that applies to everyone); Fanny Ambühl and Stephan Beutler, photography prohibited! - On the tension between copyright and property rights in photography, in : recht, 2011, pp. 14–19, here p. 17 (ditto).
- ↑ Barrelet / Egloff, The new copyright, 3rd edition 2008, Art. 27, Rn. 4; Cherpillod in von Büren / David, Copyright and Related Rights, 3rd Edition 2014, Rn. 919; Macciacchini / Oertli in Müller / Oertli, hand commentary on copyright law, 2nd edition 2012, Art. 27, Rn. 5; Renold / Contel in Werra / Gilliéron, Propriété intellectuelle, 2013, LDA Art. 27 Rn. 11; Blaise Carron et al. a., The copyright of the planners, Schulthess, Zurich 2014, ISBN 978-3-7255-8505-2 , p. 127 f .; Eric Pahud, The Social Binding of Copyright , Diss., Univ. Zurich, Stämpfli, Bern 2000, p. 137.
- ↑ Barrelet / Egloff, The new copyright, 3rd edition 2008, Art. 27 para. 2, 4; Cherpillod in von Büren / David, Copyright and Related Rights, 3rd Edition 2014, Rn. 918; Hilty, Copyright, 2011, para. 236; Macciacchini / Oertli in Müller / Oertli, hand commentary on the Copyright Act, 2nd edition 2012, Art. 27 Rn. 6; Fanny Ambühl and Stephan Beutler, photography prohibited! - On the tension between copyright and property rights in photography, in : recht, 2011, pp. 14–19, here p. 17; Blaise Carron et al. a., The copyright of the planners, Schulthess, Zurich 2014, ISBN 978-3-7255-8505-2 , p. 128; Daniel Csoport, Legal Protection for Artists in Swiss and International Copyright Law (PDF file, 0.7 MB), Diss., Univ. St. Gallen, 2008, accessed on February 1, 2014, p. 25; Eric Pahud, The Social Binding of Copyright , Diss., Univ. Zurich, Stämpfli, Bern 2000, p. 137. The change in the wording from “public paths or squares” to “generally accessible ground” in the course of the 1993 URG revision means that interiors are also covered by the barriers be. For example Bernhard Wittweiler, On the barriers in the new copyright law, in: Current legal practice, 1993, No. 5, p. 588 ff., Here p. 591 and afterwards Rolf auf der Maur, Multimedia: New challenges for copyright, in: Current legal practice, 1995, No. 4, p. 435 ff., here p. 439.
- ↑ Barrelet / Egloff, The new copyright, 3rd edition 2008, Art. 27 para. 4; Macciacchini / Oertli in Müller / Oertli, hand commentary on the Copyright Act, 2nd edition 2012, Art. 27 Rn. 6; Fanny Ambühl and Stephan Beutler, photography prohibited! - On the tension between copyright and property rights in photography, in : recht, 2011, pp. 14–19, here p. 18.
- ↑ Explicitly against the applicability for train station halls Rehbinder / Viganó, URG, 3rd edition 2008, Art. 27 Rn. 2. For applicability: Macciacchini / Oertli in Müller / Oertli, hand commentary on copyright law, 2nd edition 2012, Art. 27 para. 6 (also for “parking pavilions, shopping malls, shopping centers”); Hug in Raschèr / Senn, Kulturrecht - Kulturmarkt , 2012, § 15.7.3; Fanny Ambühl and Stephan Beutler, photography prohibited! - On the tension between copyright and property rights in photography, in : recht, 2011, pp. 14–19, here p. 18 (also in shopping malls, because in both cases "according to common parlance it is not an actual interior space") trade).
- ↑ Cherpillod in von Büren / David, Copyright and Related Rights, 3rd Edition 2014, Rn. 918; Macciacchini / Oertli in Müller / Oertli, hand commentary on the Copyright Act, 2nd edition 2012, Art. 27 Rn. 6; Rehbinder / Viganó, URG, 3rd edition 2008, Art. 27 Rn. 2; Fanny Ambühl and Stephan Beutler, photography prohibited! - On the tension between copyright and property rights in photography, in : recht, 2011, pp. 14–19, here p. 18.
- ↑ Barrelet / Egloff, The new copyright, 3rd edition 2008, Art. 27 para. 5; Macciacchini / Oertli in Müller / Oertli, hand commentary on the Copyright Act, 2nd edition 2012, Art. 27 Rn. 9; according to Rehbinder / Viganó, URG, 3rd edition 2008, Art. 27 para. 3 (“recognizable deliberately and permanently on or on publicly accessible ground”); Blaise Carron et al. a., The copyright of the planners, Schulthess, Zurich 2014, ISBN 978-3-7255-8505-2 , p. 128.
- ↑ Macciacchini / Oertli in Müller / Oertli, hand commentary on copyright law, 2nd edition 2012, Art. 27 Rn. 9.
- ↑ Dessemontet, La propriété intellectuelle et les contrats de license, 2nd edition 2011, Rn. 153 ("critère décisif").
- ↑ Rehbinder / Viganó, URG, 3rd edition 2008, Art. 27 para. 3.
- ↑ Barrelet / Egloff, The new copyright, 3rd edition 2008, Art. 27 para. 5; Blaise Carron et al. a., The copyright of the planners, Schulthess, Zurich 2014, ISBN 978-3-7255-8505-2 , p. 128.
- ↑ Barrelet / Egloff, The new copyright, 3rd edition 2008, Art. 27 para. 5 (“Sculptures made of snow and ice”); Hilty, Copyright, 2011, para. 236 (“plaster paintings”); Macciacchini / Oertli in Müller / Oertli, hand commentary on the Copyright Act, 2nd edition 2012, Art. 27 Rn. 9 (“Chalk paintings on the street or the sugar sculpture 'A WAY' by Simone Zaugg in 2008 at the gas station in Stampa”); Macciacchini / Oertli in Müller / Oertli, hand commentary on the Copyright Act, 2nd edition 2012, Art. 27 Rn. 8 (“Statue in the park, graffiti by the 'sprayers of Zurich', chalk drawing on the street”); on graffiti, see also - still after the UrhG [1922] - Richard Frank, Der Wandbesprayer und das Copyright , in: Schweizerische Juristoreitung , Vol. 75, No. 14, 1979, pp. 223–224, here p. 224 (recorded, since "intended as permanent works of the fine arts").
- ↑ For example, Barrelet / Egloff, The new copyright, 3rd edition 2008, Art. 27 Rn. 6 (“may also request that their names be given”).
- ↑ In this sense Macciacchini / Oertli in Müller / Oertli, hand commentary on copyright law, 2nd edition 2012, Art. 27 Rn. 14 (right of recognition “within the framework of social custom”); Sandro Macciacchini, The unauthorized reproduction of works protected by copyright in mass media, in: sic !, 1997, pp. 361–371, here p. 370; similarly also Renold / Contel in Werra / Gilliéron, Propriété intellectuelle, 2013, LDA Art. 27 Rn. 16, who affirm a fundamental obligation to give names, however: “On pourrait admettre en revanche que, pour des raisons pratiques, la mention du nom de l'author ne soit pas nécessaire. Tel sera le cas si l'exemplaire de l'œuvre reproduit ne constitue pas l'élément central […] ”.
- ↑ In this sense Hilty, Copyright, 2011, Rn. 236.
- ↑ a b Directive 2001/29 / EC (PDF) of the European Parliament and of the Council of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society.
- ↑ Reto M. Hilty and Sylvie Nérisson, Overview, in: dies (Ed.), Balancing Copyright, 2012, op. Cit., Pp. 1–78, here pp. 23–28.
- ↑ Reto M. Hilty and Sylvie Nérisson, Overview, in: dies (ed.), Balancing Copyright, 2012, op. Cit., Pp. 1–78, here pp. 24 ff. On the situation in Germany, for example, Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 12.
- ^ Martin Senftleben, Copyright, limitations and the three-step test. An analysis of the three-step test in international and EC copyright law , Kluwer, Den Haag 2004, ISBN 90-411-2267-2 , p. 272.
- ↑ In this sense, for example, Jane C. Ginsburg, “European Copyright Code” - Back to the First Principles (With Some Additional Detail) , in: Journal of the Copyright Society of the USA , Vol. 58, No. 2, 2011, p 265-299, here p. 292; Christian Handig, too, in this direction, graffiti on “Leiberln” and “Häferln”: Lothar Wiltschek on his 70th birthday , in: Austrian papers for industrial property rights and copyright , vol. 67, no. 4a, 2018, p. 157.
- ↑ So Laddie / Prescott / Vitoria, The Modern Law of Copyright and Designs , Vol. 1, 4th Edition 2011, § 21.94 (assuming that courts will interpret the provision in an appropriate manner); Spoor / Verkade / Visser, Auteursrecht , 2005, § 5:51 (p. 291) (on the wording adopted word for word from EU law in Article 18 of the Dutch Copyright Act in Article 18 of the Dutch Copyright Act with reference to the ratio legis ); Vogel in Schricker / Loewenheim, Copyright, 5th edition 2017, § 59 Rn. 9; Walter, Austrian Copyright , 2008, Rn. 1326, as well as Zemann in Kucsko / Handig, copyright , 2nd edition 2017, § 54 Rn. 59 (on the wording adopted word for word from EU law in the course of the 2003 amendment to the copyright law in Section 54, Paragraph 1, Item 5 of the Austrian Copyright Act). But see Bechtold in Dreier / Hugenholtz, Concise European Copyright Law , 2nd edition 2016, p. 467 (“created with the purpose to locate them permanently in public places”).
- ↑ Legal Committee of the European Parliament, report on the implementation of Directive 2001/29 / EC of the European Parliament and of the Council of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society (2014/2256 (INI)). Draft resolution of the European Parliament on the implementation of Directive 2001/29 / EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society , 24 June 2015, accessed on 29 May 2001 . June 2015, point 46. For the subsequent legislative process, cf. also the presentation of the rapporteur of the final report: Anne-Catherine Lorrain and Julia Reda, Freedom of panorama: a political “selfie” in Brussels, in: European Intellectual Property Review, 37, No. 12, 2015, pp. 753–755.
- ↑ European Parliament, Protocol. Thursday, July 9, 2015. 9/12. Harmonization of certain aspects of copyright and related rights (vote) , July 10, 2015, accessed on July 11, 2015; that., harmonization of certain aspects of copyright and related rights. Resolution of the European Parliament of 9 July 2015 on the implementation of Directive 2001/29 / EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (2014/2256 (INI)) (PDF file, 0.2 MB), July 10, 2015, accessed on July 11, 2015.
- ↑ European Parliament, Amendment 3 (A8-0209 / 3). Marietje Schaake, Kaja Kallas, Sophia in 't Veld, Fredrick Federley and others (PDF file, 0.1 MB), July 1, 2015, accessed on July 11, 2015.
- ↑ Reto M. Hilty and Sylvie Nérisson, Overview, in: dies (ed.), Balancing Copyright, 2012, op. Cit., Pp. 1–78, here p. 24 f.
- ↑ See Secrétariat général du Gouvernement / Légifrance, Code de la propriété intellectuelle. Version consolidée au October 9, 2016 , accessed October 27, 2016.
- ↑ For more information on the scope of the droit de représentation recorded here, which has expanded considerably over time, Frédéric Pollaud-Dulian, Le droit d'auteur , 2nd edition, Economica, Paris 2014, ISBN 978-2-7178-6724-4 , marginal no. 1020 ff .; Michel Vivant and Jean-Michel Bruguière, Droit d'auteur et droits voisins , 3rd edition, Dalloz, Paris 2016, ISBN 978-2-247-15834-8 , marginal no. 544 ff.
- ↑ Sénat, Avis n ° 525 (2015-2016) de Mme Colette MÉLOT, fait au nom de la commission de la culture, de l'éducation et de la communication (PDF file, 0.6 MB), April 5, 2016 , accessed on October 28, 2016, p. 53.
- ↑ In this sense Manara, La nouvelle “exception de panorama”, 2016, op. Cit., P. 42; Marie-Andrée Weiss, The new, but narrow, French freedom of panorama exception , The 1709 Blog, October 18, 2016, accessed October 27, 2016.
- ↑ Inserted by Art. 39 of Law No. 2016-1321 of October 7, 2016, cf. Secrétariat général du Gouvernement / Légifrance, LOI n ° 2016-1321 du 7 octobre 2016 pour une République numérique , accessed on October 27, 2016.
- ^ André Lucas, Henri-Jacques Lucas and Agnès Lucas-Schloetter, Traité de la propriété littéraire et artistique, 4th edition, LexisNexis, Paris 2012, ISBN 978-2-7110-1203-9 , marginal no. 455; Benoît Galopin, Les exceptions à usage public en droit d'auteur, LexisNexis, Paris 2012, ISBN 978-2-7110-1690-7 , p. 439.
- ↑ Assemblée nationale, AMENDEMENT N ° 157 ; this., Compte rendu intégral. Deuxième séance du mercredi 21 decembre 2005. 109e séance de la session ordinaire 2005–2006 , accessed on October 28, 2016.
- ↑ Sénat, Avis n ° 525 (2015-2016) de Mme Colette MÉLOT, fait au nom de la commission de la culture, de l'éducation et de la communication (PDF file, 0.6 MB), April 5, 2016 , accessed on October 28, 2016, p. 52. The government draft is available at Assemblée nationale, N ° 3318. PROJET DE LOI pour une République numérique , December 9, 2015, accessed on October 28, 2016.
- ↑ See the plenary debate, reproduced in Assemblée nationale, XIVe législature. Session ordinaire de 2015-2016. Compte rendu intégral. Première séance du jeudi 21 janvier 2016 , accessed on 28 October 2016.
- ^ "Les reproductions et représentations d'œuvres architecturales et de sculptures placées en permanence sur la voie publique, réalisées par des particuliers à des fins non lucratives." Cf. Motions No. 267 and No. 250 with the same content on printed matter No. 3399, as well as Art. 18 ter of the approved version, here cited from Assemblée Nationale, PROJET DE LOI pour une République numérique, ADOPTÉ PAR L'ASSEMBLÉE NATIONALE EN PREMIÈRE LECTURE (TEXTE ADOPTÉ n ° 663) , January 26, 2016, accessed on October 28, 2016.
- ↑ See Assemblée nationale, RÉPUBLIQUE NUMÉRIQUE - (N ° 3399). AMENDEMENT N ° 267 , January 15, 2016, accessed October 28, 2016; this., RÉPUBLIQUE NUMÉRIQUE - (N ° 3399). AMENDEMENT N ° 250 , January 15, 2016, accessed October 28, 2016.
- ↑ Assemblée nationale, RÉPUBLIQUE NUMÉRIQUE - (N ° 3399). AMENDEMENT N ° 250 , January 15, 2016, accessed October 28, 2016.
- ↑ Loi du 1er juillet 1901 relative au contrat d'association, cf. Secrétariat général du Gouvernement / Légifrance, Loi du 1er juillet 1901 relative au contrat d'association , accessed on October 28, 2016.
- ↑ Sénat, Avis n ° 525 (2015-2016) de Mme Colette MÉLOT, fait au nom de la commission de la culture, de l'éducation et de la communication (PDF file, 0.6 MB), April 5, 2016 , accessed on October 28, 2016, p. 55.
- ↑ Sénat, Avis n ° 525 (2015-2016) de Mme Colette MÉLOT, fait au nom de la commission de la culture, de l'éducation et de la communication (PDF file, 0.6 MB), April 5, 2016 , accessed on October 28, 2016, p. 54.
- ↑ Sénat, Avis n ° 525 (2015-2016) de Mme Colette MÉLOT, fait au nom de la commission de la culture, de l'éducation et de la communication (PDF file, 0.6 MB), April 5, 2016 , accessed on October 28, 2016, p. 55.
- ↑ Cf. Art. 18 ter of the Senate draft, here quoted from Sénat, N ° 131. PROJET DE LOI pour une République numérique , May 3, 2016, accessed on October 28, 2016. The Legal Affairs Committee previously took over the result of the Culture Committee, cf. Sénat, Rapport n ° 534 (2015-2016) de M. Christophe-André FRASSA, fait au nom de la commission des lois, déposé le 6 avril 2016 (PDF file, 2.8 MB), accessed on October 28, 2016 , P. 110.
- ↑ Cf. Art. 18 ter of the draft of the Joint Committee, here quoted from Sénat, PROJET DE LOI pour une République numérique. TEXTE ÉLABORÉ PAR LA COMMISSION MIXTE PARITAIRE , June 30, 2016, accessed on October 27, 2016.
- ↑ Michel Vivant and Jean-Michel Bruguière, Droit d'auteur et droits voisins , 3rd edition, Dalloz, Paris 2016, ISBN 978-2-247-15834-8 , marginal no. 596 (with numerous references to case law); Frédéric Pollaud-Dulian, Le droit d'auteur , 2nd edition, Economica, Paris 2014, ISBN 978-2-7178-6724-4 , marginal no. 1231 (detailed on the historical development); Pierre-Yves Gautier, Propriété littéraire et artistique, 9th edition, Presses Univ. de France, Paris 2015, ISBN 978-2-13-063244-3 , marginal no. 108; André Lucas, Henri-Jacques Lucas and Agnès Lucas-Schloetter, Traité de la propriété littéraire et artistique, 4th edition, LexisNexis, Paris 2012, ISBN 978-2-7110-1203-9 , marginal no. 455; Astrid Müller-Katzenburg, photographs and other reproductions of works in public - On the content and limits of the copyright "freedom of panorama", in: Art Law and Copyright, 6, No. 1, 2004, pp. 3–8, here p. 7. The German copyright law recognizes an independent limit for so-called insignificant accessories (see the article " Accessories "), which applies to all types of work, but is interpreted much more narrowly in terms of content. A dogmatic closeness in its judicial construction exists to that extent to the American de minimis doctrine; on their dogmatics cf. Patry, Patry on Copyright, as of September 2017 (via Westlaw), § 9:60 ( de minimis not as affirmative defense, but “negation of an element of plaintiff's prima face case”) and, fundamentally, Perris v. Hexamer, 99 US 674, 675 (1878) ( Google Scholar ) and in comparison to French dogmatics Michel Vivant and Jean-Michel Bruguière, Droit d'auteur et droits voisins , 3rd edition, Dalloz, Paris 2016, ISBN 978-2- 247-15834-8 , para. 597.
- ↑ Cour de cassation, 1ère Chambre civile, judgment of March 15, 2005 = RIDA 205/2005, 459.
- ↑ Cour de cassation, 1ère Chambre civile, judgment of July 4, 1995 = RIDA 167/1999, 259; also the lower court Cour d'Appel Paris, 1ère Chambre, judgment of October 27, 1992 = RIDA 156/1993, 229. See Astrid Müller-Katzenburg, photographs and other reproductions of works in public - on the content and limits of the copyright " Panorama Freiheit ", in: Art Law and Copyright, 6, No. 1, 2004, pp. 3–8, here p. 7.
- ↑ Frédéric Pollaud-Dulian, Le droit d'auteur , 2nd edition, Economica, Paris 2014, ISBN 978-2-7178-6724-4 , Rn. 1232 (with evidence of case law).
- ^ André Lucas, Henri-Jacques Lucas and Agnès Lucas-Schloetter, Traité de la propriété littéraire et artistique, 4th edition, LexisNexis, Paris 2012, ISBN 978-2-7110-1203-9 , marginal no. 456 and 320.
- ↑ Davies / Caddick / Harbottle, Copinger and Skone James on Copyright, Vol. 1, 17th edition 2016, § 9-266. Skeptical about the possibility of contractual restrictions, however, Laddie / Prescott / Vitoria, The Modern Law of Copyright and Designs, Vol. 1, 4th edition 2011, § 21.95.
- ↑ Laddie / Prescott / Vitoria, The Modern Law of Copyright and Designs, Vol. 1, 4th Edition 2011, § 21.94.
- ^ Lionell Bently and Brad Sherman, Intellectual property law , 4th edition, Oxford University Press, Oxford 2014, ISBN 978-0-19-964555-8 , p. 265; in this sense Enrico Bonadio, Copyright protection of street art and graffiti under UK law , in: Intellectual Property Quarterly , 2017, No. 2, pp. 187–220, here p. 211; Robert Burrell and Allison Coleman, Copyright Exceptions: The Digital Impact , Cambridge University Press, Cambridge 2005, ISBN 0-521-84726-5 , p. 233. The argument can only be understood from a German perspective if one considers German law Consider the divergent usage of British copyright law: The term “work” is used in the CDPA in the sense of a work piece - “work” is the object that results from the creative process (cf. Davies / Caddick / Harbottle, Copinger and Skone James on Copyright, Vol. 1, 17th Edition 2016, § 3-20). An architect then has a "copyright" on the plan and a "copyright" on the (executed) building (cf. Davies / Caddick / Harbottle, Copinger and Skone James on Copyright, Vol. 1, 17th edition 2016, § 7-113 f .).
- ↑ See for example Laddie / Prescott / Vitoria, The Modern Law of Copyright and Designs, Vol. 1, 4th edition 2011, § 21.94.
- ↑ Reproduced from DJG Visser, De beperkingen in de Auteursrechtrichtlijn , in: Tijdschrift voor Auteurs-, Media- en Informatierecht (AMI) , 25, No. 1, 2001, pp. 9–15, here p. 13.
- ↑ Gerbrandy, Kort commentaar op de Auteurswet 1912 , 1988, Art. 18 para. 6. Here reproduced from the German translation of Act i. d. F. of October 27, 1972 in Möhring / Katzenberger, Sources of Copyright, 4, status: 56. EL 2005, Netherlands / II.
- ↑ Spoor / Verkade / Visser, Auteursrecht , 2005, § 5:51 (p. 289).
- ↑ Quanjel-Schreurs in Grosheide / Pinckaers / Spoor, Intellectuele eigendom , status: 51st EL 2015, Art. 18 AW, p. 4.
- ↑ For the underlying legal text, see Overheid.nl, Auteurswet - Geldend van 01-09-2017 t / m heden, Article 18 , accessed on September 16, 2017. Here reproduced from the English translation of the unchanged provision of the Copyright Act in the version of Amendments of September 23, 2006 in WIPO Lex, Act of September 23, 1912, containing New Regulation for Copyright (Copyright Act 1912, as amended up to April 1, 2006) , accessed September 16, 2017.
- ↑ De Zwaan, Geen beelden, geen nieuws , 2003, op.cit ., P. 186 f.
- ↑ Quanjel-Schreurs in Grosheide / Pinckaers / Spoor, Intellectuele eigendom , status: 51st EL 2015, Art. 18 AW, p. 4; Spoor / Verkade / Visser, Auteursrecht , 2005, § 5:51 (p. 290). In this respect, see the Nota naar aanleiding van het verslag 28,482 no 5 (PDF file, 0.1 MB), March 17, 2003, p. 36 f. De Zwaan, Geen beelden, geen nieuws , 2003, op. Cit., P. 187 f. (too flat rate).
- ↑ Rb. Arnhem AMI 2005, 204 - Tellegen / Codemasters according to Quanjel-Schreurs in Grosheide / Pinckaers / Spoor, Intellectuele eigendom , status: 51. EL 2015, Art. 18 AW, p. 5.
- ↑ Rb. Leeuwarden AMI 2006, 67, 68 - De Groene Leguaan / Friesland Bank , with negative comment Seignette (holiday park not freely accessible, violation of three-step test [p. 69]); Rb. Leeuwarden AMI 2008, 76, 77 - De Groene Leguaan / Friesland Bank , with a negative comment by Visser (who among other things suggests viewing the use as an "eye-catcher" on an advertising poster as a hindrance to normal evaluation and thus on the three-step -Test fail or alternatively assume a violation of moral rights [p. 79]). Quaedvlieg, De wettelijke vertekeningen van de panoramavrijheid , 2018, op.cit ., P. 9, also reports copyright concerns about the use of advertising.
- ↑ Quanjel-Schreurs in Grosheide / Pinckaers / Spoor, Intellectuele eigendom , status: 51. EL 2015, Art. 18 AW, p. 7; Spoor / Verkade / Visser, Auteursrecht , 2005, § 5:51 (p. 290); Verkade in Geerts / Visser, Intellectuele eigendom , 5th edition 2016, Art. 18 AW, Rn. 2.a.
- ↑ Quanjel-Schreurs in Grosheide / Pinckaers / Spoor, Intellectuele eigendom , status: 51. EL 2015, Art. 18 AW, p. 7; Spoor / Verkade / Visser, Auteursrecht , 2005, § 5:51 (p. 290).
- ↑ Quanjel-Schreurs in Grosheide / Pinckaers / Spoor, Intellectuele eigendom , status: 51. EL 2015, Art. 18 AW, p. 13; Spoor / Verkade / Visser, Auteursrecht , 2005, § 5:51 (p. 291); Verkade in Geerts / Visser, Intellectuele eigendom , 5th edition 2016, Art. 18 AW, Rn. 2 B; Memorie van toelichting 28,482 nr 3 (PDF file, 0.2 MB), p. 52.
- ↑ Quanjel-Schreurs in Grosheide / Pinckaers / Spoor, Intellectuele eigendom , status: 51. EL 2015, Art. 18 AW, p. 2; Spoor / Verkade / Visser, Auteursrecht , 2005, § 5:51 (p. 289); de Zwaan, Geen beelden, geen nieuws , 2003, op.cit ., p. 190.
- ↑ Verkade in Geerts / Visser, Intellectuele eigendom , 5th edition 2016, Art. 18 AW, Rn. 1.
- ↑ Spoor / Verkade / Visser, Auteursrecht , 2005, § 5:51 (p. 291); De Zwaan, De Auteurswet gewijzigd: Article 18 Aw (kunst op openbare plaatsen) , 2005, op. Cit., P. 89; ders., Geen beelden, geen nieuws , 2003, op. cit., p. 190; Nota naar aanleiding van het verslag 28,482 no 5 (PDF file, 0.1 MB), March 17, 2003, p. 36 f.
- ^ Spoor / Verkade / Visser, Auteursrecht , 2005, § 5:51 (p. 291).
- ↑ Quaedvlieg, Driestappentoets en panoramavrijheid , 2018 , op.cit ., P. 25.
- ↑ Verkade in Geerts / Visser, Intellectuele eigendom , 5th edition 2016, Art. 18 AW, Rn. 2.c.
- ↑ Quanjel-Schreurs in Grosheide / Pinckaers / Spoor, Intellectuele eigendom , as of: 51. EL 2015, Art. 18 AW, p. 13, pointing out that such use could also fail in the three-step test.
- ↑ Gerbrandy, Kort commentaar op de Auteurswet 1912 , 1988, Art. 18 para. 2; Quanjel-Schreurs in Grosheide / Pinckaers / Spoor, Intellectuele eigendom , status: 51. EL 2015, Art. 18 AW, p. 7.
- ↑ De Zwaan, De Auteurswet gewijzigd: Article 18 Aw (kunst op openbare plaatsen) , 2005, op. Cit., P. 88; ders., Geen beelden, geen nieuws , 2003, op.cit ., p. 184 f. (Proposal de lege ferenda : extension to all work categories).
- ↑ Kruijswijk, De toekomst van de panoramavrijheid , 2018, op.cit., P. 17.
- ↑ For the legal text on which this is based, see Sveriges riksdag, Lag (1960: 729) om upphovsrätt till litterära och konstnärliga Verk , accessed on February 5, 2018.
- ↑ a b Cf. Karin Cederlund and Johan Axhamn, Sweden, in: Silke von Lewinski (Ed.), Copyright Throughout the World, as of: 11/2017 (via Westlaw), § 36: 9.
- ↑ Karin Cederlund and Johan Axhamn, Sweden, in: Silke von Lewinski (eds.), Copyright Throughout the World, as of: 11/2017 (via Westlaw), § 36:22; Marianne Levin, Lärobok i immaterialrätt , 11th edition, Kluwer, Stockholm 2017, ISBN 978-91-39-20732-0 , p. 182; Olsson / Rosén, Upphovsrättslagstiftningen , 4th edition 2016, p. 202.
- ↑ a b Olsson / Rosén, Upphovsrättslagstiftningen , 4th edition 2016, p. 202.
- ↑ Karin Cederlund and Johan Axhamn, Sweden, in: Silke von Lewinski (eds.), Copyright Throughout the World, as of: 11/2017 (via Westlaw), § 36:22; Olsson / Rosén, Upphovsrättslagstiftningen , 4th edition 2016, p. 202.
- ↑ Högsta domstolen (Supreme Court), order of April 4, 2016, Ö 849-15 ( PDF file , 0.1 MB), Rn. 15; Olsson / Rosén, Upphovsrättslagstiftningen , 4th edition 2016, p. 202.
- ↑ Högsta domstolen (Supreme Court), order of April 4, 2016, Ö 849-15 ( PDF file , 0.1 MB), Rn. 20 f .; The result is probably different, but without taking the three-step test into account: Westman, Avbildning av konstverk och byggnader på internet , 2013, op. cit., in particular p. 606 ff. (in the run-up to the decision).
- ↑ Högsta domstolen (Supreme Court), order of April 4, 2016, Ö 849-15 ( PDF file , 0.1 MB), Rn. 19, 21
- ↑ Susanne Janetzki and John Weitzmann, Report on the Freedom of Panorama in Europe , 2014, accessed on November 18, 2014, p. 21.
- ↑ Cf. 17 USC § 101 . However, the plans and drawings were and are protected as pictorial, graphic or plastic work in accordance with Section 102 (a) (5) . In addition Goldstein, Goldstein on Copyright, status: Lfg. 2017-1, § 2.15.1.2; Never / never, never on copyright, status: 102. EL 2017, § 2A.09 [A] [1] [a], each with additional evidence.
- ↑ Closer never / never, never on copyright, status: 102. EL 2017, § 2A.09 [B] [3]; Patry, Patry on Copyright, as of September 2017 (via Westlaw), § 3: 114.
- ↑ HR Rep. No. 101-735, 2d Sess. 20 (1990). According to Johnson v. Jones, 921 F. Supp. 1573, 1583 (ED Mich. 1996) ( Google Scholar ) and Value Group, Inc. v. Mendham Lake Estates, LP, 800 F. Supp. 1228, 1232-1235 (DNJ 1992) ( Google Scholar ) for residential houses.
- ↑ 37 CFR § 202.11 (b) (2) ( full text via LLI ).
- ^ Richmond Homes Management, Inc. v. Raintree, Inc., 862 F. Supp. 1517, 1523 (WD Va. 1994) ( Google Scholar ) (for a broad term of protection: “Architectural structures and plans are subject to copyright protection under 17 USC § 102 (a) (5) and (8) where the author has independently created the works and the works reflect creativity, regardless of how simple the design. ”).
- ↑ Trek. Leasing, Inc. v. United States, 66 Fed. Cl. 8, 12 (2005).
- ↑ 37 CFR § 202.11 (d) (1) ( full text via LLI ). See also Goldstein, Goldstein on Copyright, status: Lfg. 2017-1, § 2: 133. See also the recital in the House Report, HR Rep. 101-735, 2d Sess. 20 (1990).
- ↑ So already HR Rep. No. 94-1476, 2d Sess. 54 (1976); see. Never / never, never on copyright, status: 102. EL 2017, § 2A.09 [A] [2].
- ↑ Can only be registered as architectural works: Patry, Patry on Copyright. Status: September 2017 (via Westlaw), § 3: 110 (with reference to a "typo" in the House Report, where it says: "Monumental, nonfunctional works of architecture are currently protected under section 102 (a) (5) of title 17 as sculptural works. These works are, nevertheless, architectural works, and as such, will not be protected exclusively under section 102 (a) (8) ”, after Patry instead of“ not ”but rather“ now ”is meant); David E. Shipley, The Architectural Works Copyright Protection Act at Twenty: Has Full Protection Made a Difference ?, in: Journal of Intellectual Property Law, 18, No. 1, 2010, pp. 1-61, here p. 10. Differentiating : Melissa M. Mathis, Note: Function, Nonfunction, and Monumental Works of Architecture: An Interpretitive Lens in Copyright Law, in: Cardozo Law Review, 22, 2001, pp. 595–628, here pp. 625 f. (for a distinction between non-functional monuments such as the Washington Monument or the Vietnam Veterans Memorial , which are intended to enjoy protection under Section 102 (a) (5), and functional monuments such as the Guggenheim Museum New York or the Rock and Roll Hall of Fame , whose Protection should be based on Section 102 (a) (5)); Jay Orlandi, Gargoyles in Gotham: A Sculpture Incorporated into an Architectural Work Should Retain Independent Copyright Protection, in: Southwestern University Law Review, 29, 2000, pp. 617-653, here pp. 618 f. (which, in relation to the Washington Monument, still assumes a sculptural work); open but with reference to the existing legal uncertainty with regard to the classification of the Washington Monument : Clark T. Thiel, The Architectural Works Copyright Protection Gesture of 1990; or, “Hey, That Looks Like My Building!”, in: The Journal of Arts Management, Law, and Society, 27, No. 2, 1997, pp. 85-99, doi: 10.1080 / 10632929709601555 , here p. 91 .
- ↑ Gaylord v. United States, 85 Fed. Cl. 59, 72 (2008); in this regard maintained in Gaylord v. United States, 595 F. 3d 1364, 1380-1381 (Fed. Cir. 2010). See also Melissa M. Mathis, Note: Function, Nonfunction, and Monumental Works of Architecture: An Interpretitive Lens in Copyright Law, in: Cardozo Law Review, 22, 2001, pp. 595–628, here p. 609.
- ↑ On this possibility cf. Goldstein, Goldstein on Copyright, as of: 2017-1, § 2: 135 ff.
- ↑ Gaylord v. United States, 595 F. 3d 1364 (Fed. Cir. 2010).
- ↑ Closer never / never, never on copyright, status: 102nd EL 2017, § 2A.08.
- ↑ So now Star Athletica, LLC v. Varsity Brands, Inc., 580 US ___ (2017). Previously heavily controversial in case law, cf. Goldstein only, Goldstein on Copyright, status: Lfg. 2017-1, § 2.5.3.1 [b] and Never / Nimmer, Never on Copyright, status: 102. EL 2017, § 2A.08 [B] [3].
- ↑ Leicester v. Warner Bros. 232 F. 3d 1212 (9th Cir. 2000) ( Google Scholar ).
- ↑ Leicester v. Warner Bros, 232 F. 3d 1212, 1217, 1219 (9th Cir. 2000) ( Google Scholar ).
- ↑ Leicester v. Warner Bros. 232 F. 3d 1212, 1230 (9th Cir. 2000) ( Google Scholar ).
- ↑ Leicester v. Warner Bros. 232 F. 3d 1212, 1223 (9th Cir. 2000) ( Google Scholar ). Skeptical never / never, never on copyright, status: 102. EL 2017, § 2A.09 [B] [4] [c], fn. 280, which indicate that it is factual for someone who is planning a corresponding reproduction it is not clear whether the content of the respective elements can be separated, especially since the relevant case law is inconsistent; the introduction of this additional difficulty could not have been the will of Congress.
- ↑ For contributions to the decision, see e.g. John B. Fowles, The Utility of a Bright-line Rule in Copyright Law: Freeing Judges from Aesthetic Controversy and Conceptual Separability in Leicester v. Warner Bros., in: UCLA Entertainment Law Review, 12, 2005, pp. 301–344 (dealing with conceptual separability fundamentally irrelevant: protection exclusively as part of the architectural work and consequently full applicability through 120 (a) [p. 341]) ; Jay Orlandi, Gargoyles in Gotham: A Sculpture Incorporated into an Architectural Work Should Retain Independent Copyright Protection, in: Southwestern University Law Review, 29, 2000, pp. 617-653 (Restriction of protection as an architectural work "fundamentally repressive and unjust", because if the respective authors break up, the author of the plastic work would suffer considerable loss of protection as a result of 120 (a); in contrast to the author of the architectural work, the Architectural Copyright Act would only cause him disadvantages, which would not correspond to the intention of the legislature [p. 635 f.]); Aielleen Fajardo, Holy Case of Copyright Infringement, Batman !, in: UCLA Entertainment Law Review, 4, 1997, pp. 263-295; David E. Shipley, The Architectural Works Copyright Protection Act at Twenty: Has Full Protection Made a Difference ?, in: Journal of Intellectual Property Law, 18, No. 1, 2010, pp. 1-61, here pp. 36-39 (agreeing to the dissenting opinion ).
- ↑ Goldstein, Goldstein on Copyright, Status: Lfg. 2017-1, § 7.2.1.
- ↑ Never / Never, Never on Copyright, status: 102. EL 2017, § 2A.09 [B] [4] [c].
- ↑ In this sense Keith P. Ray, An Analysis of the Architectural Works Copyright Protection Act of 1990, in: The Construction Lawyer, 15, No. 23, 1995, pp. 23-33, here p. 28; Jane C. Ginsburg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, in: Columbia-VLA Journal of Law & the Arts, 14, 1989/1990, pp. 477– 506, here p. 494 f. (Also with reference to the unreasonable unequal treatment of architectural works in the sense of the exception provision and monuments that are protected as sculptural work and are therefore not affected by it). Skeptical about the reliability of the fair use doctrine Andrew Inesi, Images of Public Places: Extending the Copyright Exemption for Pictorial Representations of Architectural Works to other Copyrighted Works, in: Journal of Intellectual Property Law, 13, 2005, pp. 61-101, here pp. 75–81.
- ↑ Gregory B. Hancks, Copyright Protection for Architectural Design: A Conceptual and Practical Criticism, in: Washington Law Review, 71, 1996, pp. 177-203, here pp. 197 f.
- ↑ Andrew Inesi, Images of Public Places: Extending the Copyright Exemption for Pictorial Representations of Architectural Works to other Copyrighted Works, in: Journal of Intellectual Property Law, 13, 2005, pp. 61-101.
- ↑ Ligj No. 35/2016 për të drejtat e autoritet dhe të drejtat e tjera të lidhura me to ( Albanian , PDF) Republic of Albania. 2016. Retrieved April 15, 2018.
- ↑ See for the legal text WIPO Lex, Law on Copyright and Neighboring Rights , accessed on November 20, 2014.
- ^ Federal Register of Legislation, Copyright Act 1968. Act No. 63 of 1968 as amended, taking into account amendments up to Statute Law Revision Act (No. 1) 2016 , accessed June 18, 2016.
- ↑ Service Public Fédéral Justice, 28 FEVRIER 2013. - Code de droit économique , accessed on July 12, 2016. Here reproduced from the German translation of the stipulation in Art. 22, Paragraph 1, No. 2 of the Copyright Act and the related rights of June 30, 1994 (loi relative au droit d'auteur et aux droits voisins) in Möhring / Katzenberger, sources of copyright, 1, as of: 56th EL 2005, Belgium / II.
- ^ Service Public Fédéral Justice, 28 FEVRIER 2013. - Code de droit économique , accessed on July 12, 2016.
- ↑ On this practice cf. Barnard Vanbrabant and Alain Strowel, Belgium, in: Hilty / Nérisson, Balancing Copyright, 2012, op. Cit., Pp. 119–161, here p. 123; Marie-Christine Janssens, Implementation of the 2001 Copyright Directive in Belgium, in: International Review of Intellectual Property and Competition Law, 37, No. 1, pp. 50–65, here p. 58 (both with reference to the inconsistent approach and the interpretation problems that arise from this in the opinion of some commentators).
- ↑ Moniteur belge (PDF file, 3.0 MB), 186, No. 180, July 5, 2016, accessed on July 13, 2016, p. 41011. For the documentation of the legislative process, cf. La Chambre des représentants de Belgique, Document parlementaire 54K1484. Projet de loi modifiant le Code de droit économique en vue de l'introduction de la liberté de panorama , accessed on July 12, 2016.
- ↑ Chambre des représentants de Belgique, Compte Rendu Analytique. Séance Plénière. Jeudi, 16-06-2016, après-midi (CRABV 54 PLEN 115) (PDF file, 1.2 MB), accessed on July 13, 2016, p. 58. The amendment is printed as printed matter 1484/010 (PDF File, 0.4 MB), June 16, 2016, accessed July 13, 2016.
- ↑ Presidência da República, LEI Nº 9.610, DE 19 DE FEVEREIRO DE 1998 , accessed on July 12, 2016. Here reproduced from the English translation of the stipulations of the same word in the original version of the law, cf. WIPO Lex, Law No. 9.610 of February 19, 1998 (Law on Copyright and Neighboring Rights) , accessed July 12, 2016.
- ↑ Here reproduced from the German translation in Möhring / Katzenberger, Sources of Copyright, 1, as of: 56th EL 2005, Brazil / II.
- ↑ The wording of the regulation is reproduced here according to the German translation of the word-for-word provision i. d. F. of October 27, 2001 in Möhring / Katzenberger, Sources of Copyright, 1, as of: 56th EL 2005, China (People's Republic) / II. For the underlying current legal text of February 26, 2010 see WIPO Lex, Copyright Law of the People's Republic of China of February 26, 2010 (promulgated by the Presidential Order No. 31 of September 7, 1990; as amended up to the Decision of February 26, 2010, of the Standing Committee of the National People's Congress on Amending the Copyright Law of the People's Republic of China) , accessed April 22, 2016.
- ↑ On the decision of Wang Juxian v. Shaoxing Municipal Bureau of Water Resources cf. the Supreme People's Court Annual Report on Intellectual Property Cases, reprinted in English translation as the Supreme People's Court Annual Report on Intellectual Property Cases (2014) (China), translated by Huaxia Lai, Xiaohan Lou, Don Zhe Nan Wang and Iris Wu , in: Washington International Law Journal, 25, No. 1, 2016, pp. 151–190 (also online ( memento of April 23, 2016 in the Internet Archive ) [PDF file, 0.4 MB]), here p. 170 f.
- ↑ Peter Ganea, People's Republic of China, in: Silke von Lewinski (ed.), Copyright Throughout the World, as of: 11/2015 (via Westlaw), § 8:22, with further references.
- ↑ Closer Peter Ganea, People's Republic of China, in: Silke von Lewinski (Ed.), Copyright Throughout the World, Status: 11/2015 (via Westlaw), § 8: 9.
- ↑ On the underlying legal text cf. Civilstyrelsen / retsinformation.dk, Bekendtgørelse af lov om ophavsret , accessed on July 13, 2016. Here reproduced from the German translation of the word-for-word provision i. d. F. dated September 29, 1998 in Möhring / Katzenberger, sources of copyright, 1, status: 56th EL 2005, Denmark / II.
- ↑ Slutbetænkning fra udvalget vedrørende revision af ophavsretslovgivningen (Betænkning 1197/1190) ( Memento from July 15, 2016 in the Internet Archive ) (PDF file, 1.5 MB), March 5, 1990, accessed on July 13, 2016, p. 180.
- ↑ Slutbetænkning fra udvalget vedrørende revision af ophavsretslovgivningen (Betænkning 1197/1190) ( Memento from July 15, 2016 in the Internet Archive ) (PDF file, 1.5 MB), March 5, 1990, accessed on July 13, 2016, p. 180. See also Jørgen Blomqvis, Denmark, in: Silke von Lewinski (Ed.), Copyright Throughout the World, as of: 11/2015 (via Westlaw), § 13:22.
- ↑ Here reproduced from the official English translation of the Copyright Act i. d. F. the changes of April 10, 2016, cf. Riigi Teataja , Copyright Act , accessed July 13, 2016.
- ↑ Here reproduced from the English translation of the unchanged provision of the Copyright Act in the version of the amendments of May 22, 2015 in WIPO Lex, Copyright Act (Act No. 1961/404 of July 8, 1961, as amended up to Act No. 2015 / 608 of May 22, 2015) , accessed July 13, 2016.
- ↑ For the legal text of January 1, 2016 on which this is based, see Skrifstofa Alþingis, Höfundalög. 1972 no. 73 May 29 , accessed on July 13, 2016. Here reproduced from the English translation of the provisions of the Copyright Act with the same word-for-word in the version of Amending Act No. 93/2010, cf. WIPO Lex, The Copyright Act No. 73/1972, as last amended by Act No. 93/2010 , accessed December 30, 2014.
- ↑ See also on earlier versions that are identical in this respect Benoît Galopin, Les exceptions à usage public en droit d'auteur, LexisNexis, Paris 2012, ISBN 978-2-7110-16907 , p. 453; see also Salvatore Sica and Virgilio D'Antonio, Italy, in: Hilty / Nérisson, Balancing Copyright, 2012, op. cit., pp. 542–567, here pp. 545, 551 ff. For the consolidated version on which this is based, see Governo Italiano / normattiva.it, LEGGE 22 aprile 1941 , n.633.Protezione del diritto d'autore e di altri diritti connessi al suo esercizio. Vigenti al 13-07-2016 , accessed July 13, 2016.
- ↑ Cf. WIPO Lex, Copyright Act (Act No. 48 of May 6, 1970, as last amended by Act No. 121 of 2006) , accessed on February 7, 2015. Here reproduced from the German translation of the word-for-word provision i. d. F. of the Amending Act No. 85/2003 in Möhring / Katzenberger, Sources of Copyright, 3, as of: 56th EL 2005, Japan / II.
- ↑ Igor Gliha, Croatia, in: Hilty / Nérisson, Balancing Copyright, 2012, op. Cit., Pp. 317–347, here pp. 320, 331. For the legal text of December 5, 2013, see WIPO Lex, Copyright and Related Rights Act and Acts on Amendments to the Copyright and Related Rights Act (OG Nos. 167/2003, 79/2007, 80/2011 & 141/2013) , accessed November 20, 2014.
- ↑ Igor Gliha, Croatia, in: Hilty / Nérisson, Balancing Copyright, 2012, op. Cit., Pp. 317–347, here pp. 321 ff.
- ↑ For the underlying legal text of December 6, 2007, see WIPO Lex, Copyright Law (as last amended on December 6, 2007) , accessed on November 25, 2014.
- ↑ For the legal text of October 1, 2015 on which this is based, see Landesverwaltung Fürstentum Liechtenstein, LGBl 1999/160, No. 231.1 (also online [PDF file, 0.2 MB]), October 1, 2015, accessed on May 25, 2016 .
- ↑ On the underlying legal text of October 7, 2014 see WIPO Lex, Law on Copyright and Related Rights No. VIII-1185 of May 18, 1999 (as amended on October 7, 2014 - by Law No. XII-1183) , accessed November 25, 2014.
- ↑ For the underlying legal text, see WIPO Lex, Law No. 83 of February 4, 1994 on Copyright and Neighboring Rights (as last amended on October 21, 2010) , accessed on November 20, 2014. Here reproduced from the German translation of the word-for-word provision i. d. F. from April 1, 2004 in Möhring / Katzenberger, sources of copyright, 2, status: 56. EL 2005, Poland / II, Poland / V.
- ↑ Padlewska, Wolność panoramy w perspektywie porównawczej , 2017, op.cit ., P. 40.
- ↑ Padlewska, Wolność panoramy w perspektywie porównawczej , 2017, op.cit ., P. 42.
- ↑ Padlewska, Wolność panoramy w perspektywie porównawczej , 2017, op.cit ., P. 45 f.
- ↑ Padlewska, Wolność panoramy w perspektywie porównawczej , 2017, op.cit ., P. 48.
- ↑ Padlewska, Wolność panoramy w perspektywie porównawczej , 2017, op.cit ., P. 47.
- ↑ Nobre, Freedom of Panorama in Portugal, 2016, op.cit., P. 12.
- ↑ On the underlying legal text cf. Procuradoria-Geral Distrital de Lisboa, CÓDIGO DO DIREITO DE AUTOR E DOS DIREITOS CONEXOS (versão actualizada) , accessed on November 28, 2016. Here reproduced from the English translation by Nobre, Freedom of Panorama in Portugal, 2016, op. Cit., P. 10.
- ↑ Nobre, Freedom of Panorama in Portugal, 2016, op.cit., P. 13 f.
- ↑ Nobre, Freedom of Panorama in Portugal, 2016, op.cit., P. 15.
- ↑ Nobre, Freedom of Panorama in Portugal, 2016, op.cit., P. 13.
- ↑ Nobre, Freedom of Panorama in Portugal, 2016, op.cit., P. 14, with further references.
- ^ Nobre, Freedom of Panorama in Portugal, 2016, op.cit., P. 14.
- ↑ ConsultantPlus, Гражданский кодекс Российской Федерации часть 4 (ГК РФ ч.4) , accessed on June 27, 2017. The provision is reproduced here after the English translation of the unchanged provision of the fourth edition of the civil code in the fourth version of the Civil Code. March 2014 in WIPO Lex, Federal Law No. 35-FZ of March 12, 2014, on Amendments to the First, Second and Fourth Parts of the Civil Code and Certain Legislative Acts of the Russian Federation, accessed June 27, 2017.
- ↑ For the underlying legal text in the version of the Amending Act of July 20, 2004 see WIPO Lex, Federal Law No. 72-FZ of July 20, 2004, Amending the Law on Copyright and Related Rights , accessed November 25, 2014 or, for the consolidated previous version, dies., Law No. 5351-I of July 9, 1993 on Copyright and Related Rights (as last amended by Law of the Russian Federation No. 110-FZ of July 19, 1995) , accessed on November 25, 2014. Here reproduced from the German translation of the same word Regulation in the version of the Amendment Act of July 19, 1995 in Möhring / Katzenberger, Sources of Copyright, 5, as of: 56th EL 2005, Russia / II.
- ↑ This section has been taken over in a modified form from Susanne Janetzki and John Weitzmann, Report on the Freedom of Panorama in Europe (License: CC-by-sa 3.0 ), 2014, accessed on November 18, 2014, p. 7.
- ↑ For the legal text on which this is based, see WIPO Lex, Copyright and Related Rights Act of 30 March 1995 as last amended on December 15, 2006 , accessed on December 12, 2015. See also Miha Trampuž, Slovenia, in: Hilty / Nérisson, Balancing Copyright, 2012, op. Cit., Pp. 869-889, here p. 876.
- ↑ Susanne Janetzki and John Weitzmann, Report on the Freedom of Panorama in Europe , 2014, accessed on November 18, 2014, p. 22.
- ^ For the underlying legal text in Spanish, see WIPO Lex, Consolidated text of the Law on Intellectual Property, regularizing, clarifying and harmonizing the Applicable Statutory Provisions (approved by Royal Legislative Decree No. 1/1996 of April 12, 1996, and last amended by Royal Decree No. 20/2011 of December 30, 2011) , accessed on November 20, 2014. Here reproduced from the German translation of the word-for-word provision in the original version in Möhring / Katzenberger, sources of copyright, 5, status: 56. EL 2005, Spain / II (translated by Stefanie Müller) (there still Art. 35).
- ↑ See also Susanne Janetzki and John Weitzmann, Report on the Freedom of Panorama in Europe , 2014, accessed on November 18, 2014, p. 6.
- ↑ For the underlying legal text, see WIPO Lex, Consolidated Version of Act No. 121/2000 Coll., On Copyright and Rights Related to Copyright and on Amendment to Certain Acts (the Copyright Act), as amended by Act No. 81/2005 Coll., Act No. 61/2006 Coll. and Act No. 216/2006 Coll. , Retrieved November 20, 2014 and this., Act of April 22, 2008 Amending the Act No. 121/2000 Coll., On Copyright and Rights Related to Copyright and on Amendment to the Copyright Act , accessed on November 20, 2014. Also accessed in this context from Susanne Janetzki and John Weitzmann, Report on the Freedom of Panorama in Europe , 2014 on November 18, 2014, p. 10.
- ↑ Rachel Alemu, Uganda, in: Hilty / Nérisson, Balancing Copyright, 2012, op. Cit., Pp. 1047-1058, here p. 1053.
- ↑ Here according to the wording of the translation, cited from Susanne Janetzki and John Weitzmann, Report on the Freedom of Panorama in Europe , 2014, accessed on November 18, 2014, p. 17. See also Péter Mezei, Hungary, in: Hilty / Nérisson , Balancing Copyright, 2012, op. Cit., Pp. 475–505, here p. 489.
- ↑ Tatiana-Eleni Synodinou, Cyprus, in: Hilty / Nérisson, Balancing Copyright, 2012, op. Cit., Pp. 349–370, here p. 359.
- ↑ Tatiana-Eleni Synodinou, Cyprus, In: Hilty / Nérisson, Balancing Copyright, 2012, op. Cit., Pp. 349–370, here p. 358.
