Out of print register

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The register out of print works is since 2014 the German Patent and Trademark Office (DPMA) in Munich run directory where from on message collecting societies out of print works are entered that have been published 1966th If the right holder does not declare his objection to a work within six weeks of the notification of the entry , it may be assumed under certain conditions that the reporting collecting society is entitled to grant third parties rights of use for non-commercial use of the work. The aim of the regulation is in particular to make it easier to use out-of-print works in the context of digitization projects.

The register of out-of-print works is therefore not a complete register of all out-of-print works, but only contains those whose licensing is specifically intended by a collecting society. The incentive for a collecting society to apply for the entry of a work in the register consists in the license fee, for which it can grant the necessary rights of use to a third party willing to digitize if it is successful (no timely objection by the rights holder).

The establishment of the register was determined by an amendment to the Copyright Administration Act (UrhWG) with effect from April 1, 2014. Since the UrhWG was replaced by the Collecting Societies Act (VGG), the register has found its legal basis in Section 52 VGG.

classification

As is commonly understood, works that are out of print are works that are no longer available, i.e. no longer available in stores through the publisher. If a work is out of stock, the interested readership will therefore regularly have access problems: At best, they can still try to purchase the holdings they have received from third parties (especially through second-hand bookshops) or to inspect a copy owned by someone else (for example in a library or archive ). Institutions such as libraries and archives in particular are often willing to make such works available to a larger group of people by making digital copies of the corresponding holdings available - especially via the Internet. However, according to the existing copyright regulations, such a procedure is usually only permitted without permission if the work in question has become public domain due to the expiry of the copyright protection ( standard protection period : 70 years after the death of the author) .

In order to improve the supply of out-of-print works to the population, the German legislator used in the course of the implementation of Directive 2012/28 / EU of the European Parliament and Council of October 25, 2012 on certain permitted forms of use of orphan works (Orphan Works Directive ) the scope opened up there to create national regulations for the digitization and use of out-of-print works. In order to facilitate digitization projects, in the newly created § 13d UrhWG (today: § 52 VGG) he made a - refutable - legal presumption : If any rights holder already has a collecting society with the exercise of the reproduction rights ( § 16 UrhG) or rights with regard to their out of print works the public access ( § 19a UrhG), then it is assumed that this collecting society is also entitled to grant rights of use to such out-of-print works, the rights holders of which the collecting society has not actually been commissioned with the management of rights. Although these rights holders have not granted the collecting society any rights of management, it is assumed that the collecting society may grant third parties rights to the works in question. However, this far-reaching authorization is only granted under strict conditions ( Section 51 (1) No. 1–4 VGG):

  • On the one hand, the respective work must be out of print;
  • it must have been published in books, trade journals, newspapers, magazines or other publications before January 1, 1966;
  • it must be in the holdings of publicly accessible libraries, educational institutions, museums, archives or institutions active in the field of film or audio heritage;
  • the reproduction and making available to the public, for which the collecting society wishes to grant a right of use, may not serve commercial purposes;
  • the work must have been entered in the register of out-of-print works at the request of the collecting society.

A central function of the entry in the register of out-of-print works is that the rights holder can still prevent the collecting society from exercising rights to the out-of-print work. According to Section 51 (1) No. 5 VGG, the presumption may not be invoked if the rights holder declares his objection to the intended perception within six weeks of the announcement of the entry.

functionality

Entries are made at the request of collecting societies. In this application, which must be submitted electronically, the DPMA must be informed of the title of the work, the name of the author, the publisher by which the work was published, the date of the work's publication and the name of the collecting society making the request. The modalities of the registration procedure are laid down in an ordinance of the Federal Ministry of Justice ( ordinance on the register of out-of-print works [VergWerkeRegV]). In particular, entry in the register is subject to a fee; currently (as of June 2016) the fee per entry is one euro ( Section 2 (1) VergWerkeRegV). The DPMA does not check the entitlement of the applicant or the accuracy of the facts submitted for registration ( Section 52 (2) sentence 1 VGG). The register can be viewed by anyone on the DPMA website ( Section 52 (3) and (4) VGG).

In addition to the mandatory information reported, the DPMA also records in the register whether the rights holder has objected to the collecting society's exercise of his rights ( Section 52 (1) No. 6 VGG). Such an objection (to be declared informally) by the rights holder is - on the one hand - possible within the six-week period mentioned above to the DPMA or the collecting society; In this case, those interested in using the work cannot even use the work without permission (legal basis: Section 51 (1) No. 5 VGG). On the other hand, depending on the nature of the presumption, the use can also be contradicted later to the collecting society (legal basis: Section 51 (2) VGG). The authorization to use the out-of-print work then lapses from the declaration of the objection with effect for the future. If there is an objection to the collecting society, it will inform the DPMA, which will then modify the entry in the register accordingly.

The first entries in the register of out-of-print works were made in August 2015. By the end of November 2015, 1431 entries were recorded.

Licensing service

The federal and state governments have agreed on a licensing procedure with the collecting society Wort and the collecting society Bild-Kunst in a framework agreement that came into force on January 1, 2015. Privileged institutions (i.e. publicly accessible libraries, educational institutions, museums, archives as well as institutions active in the field of film or audio heritage) can join this framework agreement by declaring to VG Wort. The institutions that have joined can then electronically apply to the German National Library (DNB) for a license for reproduction and public access. However, this license only covers non-commercial use in the context of a so-called digital library . (Uses with other purposes are not covered by the framework agreement.) The DNB checks the application for compliance with the legal requirements and then sends it electronically to VG Wort, from where it is in turn forwarded to the DPMA. If there is no contradiction, VG Wort finally informs the applicant institution that it is now allowed to use the work under the license. The license fees per work - depending on the time of publication - are between five and fifteen euros. The accrued license fees are invoiced to the institutions, including the registration fees paid by VG Wort, twice a year.

Relationship to other registers

Also in connection with the Orphan Works Directive is the register of orphan works kept by the Office of the European Union for Intellectual Property (formerly: European Office for Harmonization in the Internal Market) . However, this serves a different function than the register of out-of-print works. The same applies to the register of anonymous and pseudonymous works kept by the DPMA .

Web links

literature

  • Gabriele Beger: Orphaned and out of print works in German copyright law . In: Media and Law . tape 32 , no. 1 , 2014, p. 18-20 .
  • Nadine Klass : The German amendment to the "Use of orphaned and out-of-print works and a further amendment to the copyright law" in the context of retro-digitization in Europe . In: Intellectual Property and Copyright Law, International Section . No. 10 , 2013, p. 881-894 .
  • Armin Talke: Orphaned and Out-of-Print Works: Is the 20th Century Finally Coming to the Digital Library? In: Communication and Law . tape 17 , no. 1 , 2014, p. 18-24 .
  • Simon Herrmann: Licensing Service for Out-of-Print Works (VW-LiS) - Making sources of the 20th century digitally accessible. In: AKMB-news. Volume 25, No. 1, 2019, pp. 24-27.

Remarks

  1. ↑ See official justification, BT-Drs. 17/13423 of May 8, 2013, p. 11.
  2. ↑ See BGBl. 2013 I p. 3728 .
  3. ↑ See Rehbinder / Peukert, Copyright and Related Rights, 18th ed. 2018, Rn. 568; Staats in Wandtke / Bullinger, Copyright, 4th edition 2014, § 61 Rn. 1; Beger, orphaned and out of print works in German copyright law, 2014, op.cit., P. 19.
  4. ↑ It would of course be possible to make the digital copies accessible under the requirements of § 52b UrhG at electronic reading stations in the own premises of libraries, museums or archives (the annex duplication required for such making accessible of printed works - i.e. the initial production of the digital copy - is from § 52b UrhG also recorded, see BGH, judgment of April 16, 2015, I ZR 69/11 = GRUR 2015, 1101 - Electronic reading places II , Rn. 29 ff.). However, since this limitation regulation requires that the respective institution also holds the corresponding template and at the same time only as many people are allowed to access the digitized material as there are copies of the work in its inventory, there is no significant improvement in terms of the genuine accessibility of out-of-print works.
  5. ↑ See official justification, BT-Drs. 17/13423 of May 8, 2013, p. 1.
  6. ↑ § 1 VergWerkeRegV i. V. m. Section 52 (1) no. 1–5 VGG.
  7. ↑ For authorization, see Section 52 (5) VGG.
  8. ↑ See DPMA, Register of Out-of-Print Works - Research , accessed on June 10, 2016.
  9. ↑ See official justification, BT-Drs. 17/13423 of May 8, 2013, p. 18.
  10. ↑ See Staats in Wandtke / Bullinger, Copyright, 4th ed. 2014, § 13e UrhWG Rn. 5.
  11. ↑ See official justification, BT-Drs. 17/13423 of May 8, 2013, p. 18; Staats in Wandtke / Bullinger, Copyright, 4th edition 2014, § 13e UrhWG Rn. 5.
  12. ↑ a b See DPMA, Annual Report 2015 ( Memento of the original from June 10, 2016 in the Internet Archive ) Info: The @1@ 2Template: Webachiv / IABot / dpma.de archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF file, 7.4 MB), accessed on June 10, 2016, p. 38.
  13. ↑ Framework agreement for the use of out-of-print works and in books (PDF file, 0.3 MB), German Library Association (bibliotheksverband.de), accessed on February 1, 2017.
  14. ↑ Cf. Art. 3 Paragraph 6 Directive 2012/28 / EU , Section 61a Paragraph 4, 5 UrhG.