Private copy

from Wikipedia, the free encyclopedia

Private copying (legal copies according to § 53 para. 1 - 3 of the German Copyright Act, § 42 paragraph 4 of the Austrian Copyright Act and Article 19 of the Swiss Copyright Law.) Refers to the legal copy of a copyright -protected work for private, not commercial and not public Use. Private copies are not to be confused with illegal black copies .

With the advent of recording devices such as video or cassette recorders, private individuals were also able to reproduce works. Thanks to digitization, which theoretically allows an unlimited number of copies in the same original quality, and the Internet, private copying has now become commonplace.

Since budget control was not enforceable, the legislature granted the possibility of legal private copying. Flat-rate levies were introduced to provide financial compensation for authors and users . This device and blank media levy in Germany is currently around 14 cents for a blank DVD-R, seven euros for an external DVD burner, 15.20 euros for a PC, 6.25 euros for cell phones with their own duplication function and 34 or 39 euros for a TV set or a DVD recorder with hard drive. For professional high-performance copiers, up to 613.56 euros must be paid to the collecting societies .

Private copying is regulated inconsistently worldwide: In Germany, Austria and Switzerland it is legally permitted under certain restrictions. Within the European Union , Directive 2001/29 / EC provides for the possibility of private copying, but does not oblige the member states to allow this. If a country chooses to do so, the directive calls for “fair compensation” for rights holders and the legal protection of copy protection measures.

In general, caution is required when downloading copyrighted files to your home computer. In particular, if a peer-to-peer program is used for this purpose, the user can be guilty of illegal distribution because, if he does not deactivate simultaneous uploading, he in turn makes the files available to all other users for download.

Legal basis

Germany

Private copying is regulated in German law in Section 53 (1) sentence 1 UrhG . According to § 15 UrhG , only the author has the right to exploit his work. This also includes reproduction. One of the many restrictions of § 15 UrhG is the "private copy" from § 53 UrhG. The private copy is a so-called limitation of the copyright law , which restricts the fundamentally exclusive right of reproduction of the author (§§ 15 Abs. 1 Nr. 1, 16 UrhG). A judgment of the Federal Court of Justice is interpreted to the effect that up to seven copies are allowed for the narrow private circle. However, this judgment is from 1978 and does not apply to digital copies.

On September 21, 2007, the Federal Council passed the second law regulating copyright in the information society (so-called “second basket”). The law came into force on January 1, 2008. Section 53, Paragraph 1, Sentence 1 of the Copyright Act has been changed so that private copies are not permitted, provided that "an obviously illegally produced or publicly accessible template" is used for the reproduction.

Austria

Private copying is regulated in Austrian law in Section 42 (4) UrhG :

(4) Every natural person may produce individual copies of a work on media other than those mentioned in Paragraph 1 [paper or a similar medium that is available to everyone for their own use] for private use and neither for direct nor indirect commercial purposes.

According to Section 42 (5) UrhG , the copies may not be used to make the work accessible to the public.

With the UrhG amendment of August 2015, Section 42 (5) was expanded to the effect that private copies are no longer permitted in Austria if “an obviously illegally produced or publicly accessible template” is used for reproduction.

(5) Subject to Paragraphs 6 and 7, reproduction for personal or private use does not exist if it is made for the purpose of making the work accessible to the public with the aid of the copy, or if it is an obviously illegally produced or public copy accessible template is used. Copies made for personal or private use may not be used to make the work accessible to the public.

Switzerland

Art. 19 of theSwiss Copyright Actpermits the use of published works for personal use:

(1) Published works may be used for personal use. Personal use applies:
a. any use of the work in the personal sphere and among people who are closely related to one another, such as relatives or friends;
b. any use of works by the teacher for teaching in the class;
c. the reproduction of copies of works in companies, public administrations, institutes, commissions and similar institutions for internal information or documentation.
(2) Anyone who is entitled to personal use may, subject to paragraph 3, have the necessary reproductions made by third parties; Libraries, other public institutions and businesses that make copiers available to their users are also considered third parties within the meaning of this paragraph.

In the following paragraph 3, the reproduction of copies of the work is prohibited only outside the private sphere in accordance with paragraph 1 letter a . The article does not apply to computer programs.

Private Copy Limitations

The copyright laws in Germany and Austria contain a general permit for reproductions for private purposes, but there are also some restrictions. Individual types of work are often excluded from private copying, or private copying is only permitted under certain circumstances.

Private use

The reproduction may only be made for private use; use for commercial purposes is therefore excluded. The transfer to third parties is i. d. Usually not allowed. University library scanners indicate that copies may not be passed on to third parties.

A professional use of the copy produced in this way is not permitted. For this purpose, however, the copyright law provides further restrictions that exempt copies for personal use under certain conditions.

A private copy may be made with both analog and digital means. Whether a private copy can also be made free of charge by third parties under Austrian law is controversial.

Original not obviously illegally produced

In addition, in Germany and Austria the template must not have been produced in an obviously unlawful manner. This prerequisite is often criticized because the limits cannot be foreseen: on the one hand, it is not certain when an obviousness can be assumed, on the other hand, from which point of view this should be viewed. In addition, z. For example, it is not possible to determine on the Internet whether the file offered for download was legitimately produced. With the reform of copyright law, which came into force on January 1, 2008 (so-called "2nd basket"), the feature "made publicly available" was added to the obvious illegality. The aim of the legislature is to better capture online file sharing platforms.

Number of copies

It is controversial among lawyers how many copies may be made within the scope of the private copy limit. After a decision by the Federal Court of Justice in 1978, the view is often held that up to seven copies are permissible. However, the court only ruled that no more than seven copies were allowed. The application in the proceedings at that time, which already contained this wording, also contributed to the specific decision.

However, this number has been criticized in part. Many authors do not commit themselves to an explicit number, but prefer an orientation on the individual case. In the digital environment in particular, the number of permitted reproductions is often set below seven.

As a rule, these cases were copies for training purposes for course participants.

Technical protective measures

It should also be taken into account that the legislature has regulated the technical protective measures in Sections 95a ff. UrhG (DE) and Section 90c (AT). Thereafter, it is not permitted to bypass an effective copy protection.

In Germany, § 95b UrhG provides for exceptions in favor of various restrictions, but § 53 UrhG is only covered to the extent that reprographic reproductions are made. This means that effective copy-protected media may not be copied. These provisions are often criticized.

These provisions do not apply to computer programs. There is also no criminal offense if the act is carried out for one's own private use.

Musical notes

In Germany and Austria, sheet music may only be reproduced without the consent of the copyright holder if this is done by copying. Copies of these transcripts may also not be made without consent. The background to this regulation is that the production of sheet music is usually associated with considerable effort and thus costs. Excessive copying would make this investment economically nonsensical, so that the legislature has decided on this restriction. However, this restriction does not apply if the work has been out of print for two years.

Of course, this does not apply to sheet music in the public domain or in the public domain. Works in the public domain are not subject to any copyright protection, but arrangements are also subject to copyright .

In Austria, grades can be copied for school use.

See also : Copying Notes in Kindergarten and Free Sheet Music

Essentially complete copies of books etc.

There are similar reasons for the restriction in Section 53 (4) No. 2 UrhG (DE) and Section 42 (8) (AT). According to this, essentially complete copies of books and newspapers for other purposes may also only be made by copying. Behind this is the consideration that the purchase of a work can be expected the more the content is to be used. This restriction also applies to one's own scientific use, which does not serve commercial purposes, because paragraph (4) of §53 UrhG applies in parallel to paragraph (2) and paragraph (2) does not cancel paragraph (4). University library scanners often indicate that only small portions of books can be copied.

However, this restriction does not apply if the work is (DE: out of print for two years).

Dissemination and making available to the public

The offer of authorized copies for download, e.g. B. in the context of online file sharing or websites as well as the sale of such copies is prohibited. This is intended to preserve the character of the barrier regulation and to enable the rights holder to further exploit the work.

Recording of public screenings etc.

According to German copyright law, according to Section 53 (7) UrhG, it is also prohibited for private purposes to record public lectures, performances or demonstrations of a work without the consent of the copyright holder. So z. B. filming copyrighted works in a cinema show is prohibited.

software

It is important that the restrictions of the copyright law and thus also the private copy restriction do not apply to software. Rather, Sections 69a ff. UrhG (DE) and Section 40d (AT) contain special rules for this area that do not contain any comparable provision.

Compensation obligation

In order to ensure the financial participation of the authors, performing artists (§§ 73 ff. UrhG) and phonogram manufacturers (§§ 85 ff. UrhG) in the exploitation of works, a flat-rate levy on copiers (duplicating machines ) was introduced first in Germany in 1965 and then in many other countries as well . mainly CD / DVD burners, photocopiers) and data carriers (so-called empty / storage media; especially empty cassettes, CD-Rs, DVD-Rs, MDs).

Germany

The central office for private transfer rights (ZPÜ) levies the flat-rate fees on the manufacturers / importers. The ZPÜ is an independent company, but in practice it is a department of GEMA . The ZPÜ forwards the money it collects to the collecting societies , which, after deducting their administrative costs, use a complicated key to pay out the income to the beneficiaries.

The amount of the flat-rate taxes was stipulated by the legislator until 2007 (appendix to § 54 UrhG in the version valid before January 1, 2008). The validity of this stipulation extended until 2008. From 2009 there was an agreement between the collecting societies and the storage media manufacturers. This agreement was terminated by ZPÜ on December 31, 2011. On May 16, 2012, the ZPÜ unilaterally set new and controversial fee rates by publication in the Federal Gazette , which, depending on the size of the storage medium, meant an increase in fees of up to 1850% (for Bitkom members).

Austria

In Austria, importers, manufacturers and dealers have been obliged to pay the “ empty cassette remuneration ” since 1980 . The amount of the fee is contractually regulated between the Austrian collecting societies and the responsible federal bodies of the Austrian Chamber of Commerce . The tax is collected by Austro Mechana GmbH; The legal bases are § 42b UrhG and the collecting societies law . If the media are not used for private copying, the blank media levy can in many cases be refunded.

Examples

An example of a permitted private copy is copying music to an MP3 player or making a copy of a CD for the car radio. However, this only applies if no effective copy protection measures are circumvented, whereby circumventing them does not constitute a criminal offense in the purely private sector (see above).

Other examples are the copying of newspaper articles for a private archive, TV recordings with the video recorder, the recording of radio programs with the cassette recorder or the recording of programs on the Internet radio, provided that no copy protection is bypassed.

Quality of copies

Before the advent of digital technology, private copies could only be made lossy. Analog copies - for example of analog audio data on music cassettes - are of poorer quality than the original; if you copy the copy, the quality inevitably deteriorates with each generation. The carrier material - such as the magnetic tape - is also mechanically stressed by each playback process and the quality is further impaired with each copying process, which limits the number of possible copies from the same original. In addition, the recordings age and lose quality over time, even if they are not used, which is why old analog recordings lose their suitability as a template for further copies. The range of distribution of analog private copies was therefore relatively limited by the technical conditions.

Digital copies, on the other hand, are usually the same bit as the original, the playback process does not burden the carrier medium and each copying onto a new carrier resets the already low aging. Digital technology therefore allows an unlimited number of copies of the same original as well as an unlimited length of duplication chain while maintaining the same quality as the original. It is also conceivable, if there are several, slightly damaged copies from different distribution paths, to reconstruct a complete work copy by merging them together.

In Germany, Section 53 has been adapted to this development; Private copies are expressly permitted "on any medium", including in digital form.

Watermark

By adding personalized watermarks to digital media, the rightful owner of a copy can be determined. This allows the user to convert the media file into other file formats. The quality of the application is not impaired , as is sometimes the case with DRM-protected works. Robust watermarks are not destroyed by MP3 conversion. There are also watermarks specially designed for MP3 files. The watermarks are also retained when returning to the uncompressed state and when recording the analog signals of the sound card.

public perception

In the course of the spread of Internet file sharing platforms, the topic of private copying received increased media attention. Collecting societies use advertising campaigns to point out that many of the media obtained from the Internet are illegal copies and not legal private copies.

See also

literature

Monographs on the subject of private copying:

  • Stefan-Frederick Staudacher: The digital private copy acc. 53 UrhG in the music industry. BoD GmbH, Norderstedt 2008, ISBN 978-3-8370-5809-3 .
  • Tobias Baumgartner: Private copying in the digital environment. Nomos, 2006, ISBN 3-8329-2458-2 .
  • Thomas Engels: The constitutional basis of private copying. Shaker, Aachen 2006, ISBN 978-3-8322-4960-1 ( plus dissertation, University of Cologne 2006) ( privatkopie.info ).
  • Frank Fechner (Ed.): The private copy. Legal, economic and technical considerations. Universitätsverlag Ilmenau, Ilmenau 2007, ISBN 978-3-939473-06-0 ( db-thueringen.de full text).
  • Sven Freiwald: Private copying in a digital context using the example of file sharing. Nomos, Baden-Baden 2004, ISBN 3-8329-0446-8 (plus dissertation, University of Freiburg i. Br. 2003).
  • Heike Schenk: The digital private copy , logos, Berlin 2006, ISBN 978-3-8325-1408-2 (plus dissertation, University of Göttingen 2006).
  • Thomas Meschede: The protection of digital music and film works against private reproduction according to the two laws regulating copyright in the information society. Peter Lang, Frankfurt 2007, ISBN 3-631-56254-3 .
  • Benjamin Mombree: The End of Digital Private Copying ? On the effects of digital rights management systems as technical protective measures on the limitation of copyright law. VDM, Saarbrücken 2008, ISBN 978-3-639-07288-4 .
  • Oliver Schäfer: The right to private reproduction of sound carriers: Model of a legal solution and its technical implementation. Peter Lang, Frankfurt 2005, ISBN 978-3-631-53827-2 .

Comments on Copyright Law:

Web links

Wiktionary: private copy  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ ZPÜ: General contract for mobile phones. Retrieved February 21, 2020 .
  2. ↑ BGH, GRUR 1978, 474: "If the appellate court in view of the wording of § 54 Abs. 1 Nr. 4a UrhG, the reasoning of the government draft and taking into account the literature, the submitted reports and the practice practiced in other areas for years to prohibit the defendant from having more than 7 copies made in individual cases, this is not objectionable for legal reasons. "
  3. ↑ heise.de
  4. ↑ § 53 Abs. 1 UrhG (DE) or § 42 (4) (AT)
  5. ↑ § 53 Abs. 2, 3 UrhG (DE)
  6. ^ Walter Dillenz, Daniel Gutman: Practical Commentary on Copyright: Austrian Copyright Act and Collecting Societies Act . Springer, 2004, ISBN 3-211-20796-1 , pp. 186 . The authors see the applicability of § 42a UrhG to private copying as given, but also point out that, for example, ( Walter , UrhGNov 2003) disagrees.
  7. ↑ BGH GRUR 1978, 474 - copies.
  8. ↑ Fromm / Nordemann / Nordemann, § 53 Rn. 3; Schack, ZUM 2002, 497.
  9. ↑ Wandtke / Bullinger / Lüft, § 53 Rn. 12.
  10. ↑ § 69a Abs. 5 UrhG (DE) or § 90c (5) (AT)
  11. ↑ §108b UrhG (DE), §91 (AT)
  12. ↑ § 53 Abs. 4 Nr. 1 UrhG (DE) or § 42 (8) (AT)
  13. ↑ § 42 (6) UrhG
  14. ↑ § 53 Paragraph 6 UrhG (DE) or § 42 (5) (AT)
  15. ↑ heise.de : ZPÜ increases taxes on USB sticks and memory cards drastically (May 24 , 2012 ) , last accessed on June 2, 2012
  16. ↑ Overall contract for remuneration for empty cassettes
  17. ↑ Reimbursement of the blank media levy: URA reimbursement form ( Memento from February 26, 2014 in the Internet Archive ) (PDF).