Limitations of Copyright
Copyright barriers is the legal designation for those provisions of German copyright law that are intended to create a balance between the interests of the author , who is principally granted the exclusive right of use , and opposing interests. For this purpose, the legislature has imposed numerous restrictions on exploitation rights in Sections 44a to 63a of the Law on Copyright and Related Property Rights (UrhG).
The barriers can be systematically divided into limitations in favor of individual users, the cultural industry and the general public. These include, for example, the permission to reproduce for personal use, the freedom to borrow (e.g. quotations ) and the permission to publicly reproduce in teaching.
The term of protection of copyright has a special position : Formally it is not one of the barriers of copyright law, but is regulated in a separate section of the copyright law. In terms of effect, however, the limited period of protection is comparable to the limitation regulations, because after the statutory period has expired, previously protected works can be used without the consent of the author ( public domain ).
General
The limits of the copyright law are defined as a final catalog of individual exceptions. In contrast to, for example, US law ( Fair Use , 17 USC § 107), German copyright law does not have an open general clause. For users of works protected by copyright, this means an increased degree of legal security , but at the same time the flexibility and adaptability of German copyright law suffers from this control technology.
With regard to the interests of the authors, limitation regulations are generally subjected to the three-stage test of the revised Berne Convention : Exceptions to copyright protection should 1. be “certain special cases”, 2. neither affect the normal evaluation of the work nor 3. unreasonable the legitimate interests of the author violate.
The barriers of copyright law can be divided into legal licenses and non-substitute exemptions with regard to their intensity . Should any use fall under a statutory license, the user must pay compensation for the use of the work. For reasons of simpler processing, this remuneration obligation is often designed by the legislator in such a way that the payment has to be made to a collecting society . Strictly speaking, the mere collecting society obligation of use does not constitute a separate limitation regulation. In the case of exemption, however, there is no obligation to pay.
The compulsory license is not one of the limitations of copyright law. Rather, it concerns the right holder's freedom of choice as to whether or not he wants to allow certain acts of use. Such a provision can be found in § 42a UrhG in favor of phonogram producers.
The Federal Court appeals to many decisions that the barriers regulations generally be interpreted strictly. The reason for this, in the opinion of the court, is that the barriers restrict property protected by constitutional rights ( Article 14 of the Basic Law ) and that this restriction of the freedom of the creator should be the exception. Literature follows this too. In this context, the Federal Court of Justice has repeatedly spoken out in favor of the author being involved as far as possible in the commercial exploitation of his works (so-called principle of participation). However, the Federal Court of Justice also makes it clear that when interpreting a limitation provision, the interests protected by it must be taken into account, which can displace a narrow interpretation based on the wording of the law in favor of a more generous interpretation that satisfies the weight of the interests protected by the limitation provision.
However, this principle of narrowly interpreting barriers is sometimes criticized as being too restrictive. Some court decisions also deviate from this, mainly in order not to jeopardize the uniqueness of the respective barriers. In addition, an analogous application of a limitation provision to a case that is not explicitly covered by the law, but appears comparable to a legally regulated situation, may be justified. This is particularly conceivable if the user can claim a position that is protected by constitutional rights (for example freedom of expression or freedom of art).
Individual restrictions
The following is a brief overview of the barriers that are standardized in the German copyright law.
Temporary reproductions, § 44a UrhG
The reproduction right of the author is limited by the right to temporary acts of reproduction.
In the area of computer-based use of works protected by copyright, there are often short-term and purely technically necessary duplication activities (e.g. storage in RAM ). These are permissible according to § 44a UrhG if they are volatile or accompanying, as well as represent an integral part of this technical process and enable transmission in the network or the lawful use of a work that has no independent economic significance. This applies in particular to (intermediate) storage processes ( caching and the use of proxy servers ).
Administration of justice and public safety, § 45 UrhG
According to § 45 Abs. 1 UrhG the production or the production of individual copies for use in proceedings before courts , arbitration tribunals or an authority is permitted. This limit is intended in particular to facilitate the presentation of evidence . The law does not limit the number of copies permitted. Rather, it results from the number of people involved in the process.
Reproductions for the benefit of disabled people, § 45a UrhG
By § 45a UrhG the duplication is for physically or cognitively impaired people permitted if they had no or significantly limited access to the work because of their disability otherwise. Please note that the reproduction may not be used for commercial purposes. In addition, the author is to be paid appropriate remuneration for this form of use of the work, if not only individual copies are made.
Collections for church, school or teaching use, § 46 UrhG
Section 46 (1) UrhG permits extensive use of parts of works or works of small size in favor of collections that are intended for use in schools , non-commercial training institutions or churches . Works by a large number of authors must be included in these collections. The author must be informed of the planned use. Under certain circumstances, he or she has the option of prohibiting its use if his work no longer corresponds to his beliefs.
Educational use requires that the collections actually be used in the classroom. Adult education institutions, music schools and private lessons are not included.
School radio broadcasts, § 47 UrhG
To facilitate teaching, Section 47 (1) UrhG permits schools and institutions for teacher training and further training as well as certain comparable bodies to produce individual copies of works that are broadcast in the context of school radio broadcasts. However, these copies may only be used in class. They must be deleted no later than the end of the school year following the broadcast. Deletion is only not necessary if the author is paid appropriate remuneration.
Public speeches, § 48 UrhG
Through the limitation of § 48 UrhG, the legislature takes into account the public's interest in being aware of speeches that have been made on certain public occasions. Speeches at public meetings are accessible to any use in newspapers or similar broad information media. An extension for speeches that were given in public negotiations before state, municipal or church bodies is contained in Section 48 (1) No. 2 UrhG. The law does not contain any further restrictions for this, so that these can also be reproduced in collections and brochures as well as in broadcasts. However, the organizer is able to prohibit the recording due to his house rules .
Newspaper articles and radio commentaries, § 49 UrhG
A restriction in favor of the use in newspaper articles and radio commentaries is provided in § 49 UrhG. This standard allows newspapers and radio broadcasters to reprint individual articles or broadcast individual radio commentaries on political, economic or religious issues of the day. The author of the original contribution may have to be paid an appropriate fee.
According to Section 49 (2) UrhG, mixed news with actual content and daily news that have already been published by the press may be reproduced, distributed and publicly reproduced through any number of communication channels without restriction and without remuneration.
Section 49 (2) UrhG does not apply to photo reports. As a rule, the information recorded by Section 49 (2) UrhG will not be protected anyway due to a lack of individuality . This would only be the case as an exception if the message was given a peculiar form.
Reporting on current events, § 50 UrhG
For reporting on current events by radio or other, comparable media, in newspapers, magazines and other printed matter / data carriers that essentially take daily interests into account, as well as in films, according to Section 50 UrhG, the use of works that become perceptible in the course of these events is, admissible to the appropriate extent. Broadcasting an entire festival, for example, would go beyond the required scope.
According to this regulation, the use of a message can also be permitted on the Internet . It should be noted, however, that this is only the case if the publication essentially takes daily interests into account.
Quotations, § 51 UrhG
Whole works or parts of them can be taken over by quotations to the extent required by the purpose. Since the author also builds on the cultural achievements of the general public, this relatively minor interference in the general interest can be expected of him, provided that he promotes the cultural debate ( § 51 UrhG).
The legislature fundamentally subdivides it into so-called large quotations , small quotations and music quotations . However, the quote must serve to support or deal with one's own statements or be a means of artistic design (so-called document function). The barrier is overstrained, for example, when a work is created simply by stringing together different quotations. Rather, the takeover must aim to create an independent, protectable scientific work.
Public communication, § 52 UrhG
Public reproduction is also possible without the consent of the author, if it does not serve a profitable purpose of the organizer, participation is free of charge and none of the performing artists receives special remuneration ( § 52 UrhG).
However, an appropriate remuneration must be paid for this reproduction. However, the remuneration obligation does not apply under certain circumstances, e.g. B. at youth or social welfare events and school events that are only accessible to a limited group of people.
Public access for teaching and research, § 52a UrhG
omitted
Reproduction of works at electronic reading areas in public libraries, museums and archives, § 52b UrhG
not applicable, see also § 60e Paragraph 4 UrhG valid from March 1, 2018.
Reproductions for private and other personal use, § 53 UrhG
Reproductions for private and other personal use are largely exempted by Section 53 UrhG. General restrictions are contained in Section 53, Paragraphs 4-7 UrhG. Appropriate remuneration must be paid for reproductions made within the framework of § 53 UrhG. Sections 54 ff. UrhG contain detailed regulations. According to this, a tax on duplicators and blank media as well as an operator tax for photocopies is planned. Thereafter, however, the production without the use of duplicating devices, e.g. B. copying by hand.
Reproductions for private use, Section 53 (1) UrhG
Section 53 (1) UrhG exempts the production of individual copies for private use. It is initially irrelevant which form of reproduction is involved. This question only becomes important if the copy is made by a third party. According to the wording of the law, this is only permissible if the reproduction is carried out free of charge, or if it is a paper copy or a reproduction comparable to it.
The law requires that the master copy has not been produced in an obviously illegal manner. An assessment in the case of online file sharing sites is problematic because it is not clear whether the files offered were not created legally. Therefore, this point is controversial in the copyright literature, because the illegal access does not immediately lead to illegal production. In this respect, a clarification should be made in the so-called “second basket”, which, in addition to illegal production, also includes illegal access.
According to the wording of the law, the production of individual copies is permitted. Where exactly the line should be drawn is a matter of dispute. According to a decision by the Federal Court of Justice in 1978, no more than seven copies are permitted. However, this number has been questioned since then and is often viewed as too high, especially in the digital environment. In addition, the decision of the Federal Court of Justice was significantly influenced by the formulation of the complaint.
The law does not prohibit the distribution of reproductions. It should be noted, however, that this must also be a private use. This area of privacy cannot be formally restricted to (closer) relatives, but the passing on to only casual acquaintances is no longer covered by this wording. Rather, the people must be linked by a personal bond. The Federal Court of Justice demands that the copy be used exclusively in private to satisfy purely personal needs.
Reproductions for personal use, § 53 Paragraph 2, 3 UrhG
In addition, Section 53 (2) and (3) UrhG permit reproduction for personal use. This includes B. copying for (also commercial) scientific use, duplication for other personal use as well as copying for school lessons and exams. In some cases, however, the scope of the limit is limited, e.g. B. on copies of parts of works or works of small size.
Restrictions by § 53 Paragraph 4 to 7 UrhG
Sections 4 to 7 of Section 53 UrhG contain important restrictions. What is important here is that essentially complete copies of books or magazines cannot be made unless they are copied. There are also restrictions with regard to database works. In addition, the right to private copies of sheet music ("graphic recordings of works of music") of protected works is severely restricted in paragraph 4. They may only be copied if they have been out of print in stores for at least two years.
The regulation of Section 53 (6) UrhG is significant. According to this, the copies made within the framework of this limit may neither be distributed nor made publicly accessible. This separates z. B. a sale or the download offer on the Internet.
In addition, § 53 para. 7 UrhG stipulates that u. a. Public presentations of a work may only be recorded on video or sound carriers if the rights holder has given his consent. So z. B. filming in cinemas is also not permitted under copyright law.
Sending of copies on request, § 53a UrhG
omitted
Reproduction by broadcasting companies, § 55 UrhG
By § 55 of the Copyright Act, it is broadcasters who are allowed to broadcast a work, allows thereof with its own resources to produce copies. This barrier is used for the technical processing of the transmission process. Therefore, the copies made are to be deleted after a short period, unless the image and sound carriers are included in an archive due to their extraordinary documentary value. However, the author must be informed of this immediately.
Use of a database, § 55a UrhG
The barrier of § 55a UrhG also serves the technical processing of permissible usage processes . This allows reproductions and adaptations that are necessary to use a database. However, this presupposes that the use on your part has been authorized by the rights holder.
Duplication and public reproduction in business operations, Section 56 UrhG
By § 56 UrhG it is permitted to use z. B. Show televisions and VCRs so that copyrighted material is shown and recorded. However, data carriers produced in this way must be deleted immediately. The background to this limitation is that it should be possible for the sellers to demonstrate the use of the products and thus to advertise them. This is not covered by this exception. B. the constant running of a playback device in a restaurant, since it is primarily used to entertain the visitors.
Insignificant accessories, § 57 UrhG
The copyright protection is acc. Section 57 UrhG also restricted if someone uses works only as " insignificant accessories ", for example if they only make a very insignificant contribution in addition to the actual object of reproduction, distribution or public reproduction. This is e.g. B. conceivable if a room furnished with original works or copies serves as a backdrop for an interview. When something is still to be regarded as "insignificant" has to be assessed on a case-by-case basis.
Works in exhibitions, public sale and publicly accessible facilities, § 58 UrhG
The duplication, distribution and making available to the public of publicly exhibited works or works intended for public exhibition or public sale by the organizer is permitted in accordance with Section 58 UrhG without the consent of the copyright holder if this is necessary to promote the event. This restriction of the exclusive right of exploitation is justified by the need for all parties involved to facilitate the publication of illustrated exhibition and auction catalogs, which is not only given for the organizers and the public, but also for the author of the work, since the catalogs become known and promote sales of his works.
However, by copying and distributing in directories no independent profit-making purpose may be pursued. The respective advertising measures must be adapted in terms of space, time and content to the corresponding event and must not represent a general advertising message for the organizer. The printing of a work of art as the cover picture of an auction catalog is therefore free of permission according to § 58 UrhRG, whereas the printing of a work of art on the advertising brochure of an auction house is no longer covered by the so-called catalog image freedom .
The restriction to advertising and catalogs excludes the inclusion of merchandising products (see below: article by Loewenheim ).
Works in public places, § 59 UrhG
According to Section 59 (1) UrhG, works that are permanently located in public places , paths and streets may be reproduced, distributed and publicly reproduced through painting , graphics , photography or film (so-called freedom of panorama). The use of building views is limited to the external view. The requirement that the work must remain in this place does not rule out a possible short life (e.g. decay in the case of sensitive material) of the work of art.
The decisive factor for the barrier to freedom of panorama is that the work can be viewed from public places, paths or streets . Can it only be attached to private property or the like? take photos, this limitation does not apply. The same applies if the work is only carried out using aids, e.g. B. ladders, etc., is visible.
Portraits, § 60 UrhG
By § 60 of the Copyright Act, the use is governed by portraits that were made to order. These may be reproduced by the customer or the person shown. In addition, dissemination is permitted if it is free of charge and not for commercial purposes.
Legally permitted uses for teaching, science and institutions, §§ 60a to 60h UrhG
With the amendment to the Copyright Knowledge Society Act on March 1, 2018, additional barriers to education and science were established in Sections 60a to 60h (UrhWissG, in force from March 1, 2018).
In principle, up to 15 percent of a work can be passed on for teaching purposes to teachers and pupils in definable courses. The presentation of teaching results that contain copyrighted material to third parties, e.g. B. in the context of a school performance is made possible for the first time (§60a), manufacturers of teaching media are allowed to build collections of up to 10% of suitable works each (§60b). Up to 75% of works may be copied for one's own scientific research, but only a maximum of 15% may be passed on to others (§60c). Whole works, including database works, may be evaluated within the framework of text and data mining for research purposes (§60d). It is made clear that libraries can also make works from their own holdings electronically accessible to users, but users are only allowed to save 10% of them electronically, and up to 10% can also be transmitted to users outside of the building upon request (§60e). For archives, museums and similar institutions, it was ensured for the first time that works can also be transferred electronically, as long as the original file is then deleted immediately (§60f). For these new regulations, a remuneration obligation has been created within the framework of the collecting societies (§60h).
Change prohibition, § 62 UrhG
The admissibility of using a work protected by copyright does not necessarily mean that it may also be used in this form. Rather, Section 62 (1) UrhG contains the basic rule that changes may not be made to the work. However, translations, resizing, or other required changes are permitted in certain circumstances.
Source reference, § 63 UrhG
By § 63 of the Copyright Act makes it clear that in certain cases, the permit-free use of the source used shall be clearly indicated.
Restrictions outside of Section 6 of the Copyright Act
In addition to the restrictions just described, other standards of the Copyright Act also contain restrictions on rights of use. This includes §§ 69d, 69e and 87c UrhG. In addition - but only in a few exceptional cases - general justifications such as the ban on harassment ( Section 226 BGB) and self-defense ( Section 227 BGB) can legalize the interference with usage rights.
No barriers in the technical sense
Everyone is free to use various forms of work, even if the copyright law does not contain any express restrictions. Even if the effects are comparable to the restrictions, they still do not belong to the restrictions in the copyright sense.
Freedom to enjoy your work
This includes first of all the enjoyment of work as such, as it is e.g. B. by reading a book or listening to music. These actions are permissible because the legislature has not assigned them to the scope of copyright in the Copyright Act. There is therefore no need for a limitation regulation.
Official works
Official works are in the public domain according to § 5 UrhG , so they are not subject to any copyright protection. The background to this provision is the need to be able to make statements by state organs readily available to the public. The state files that are affected by this include laws , ordinances , official edicts, notices, decisions and officially drafted guidelines as well as other works that have been published in the official interest for general information. Official works for the instruction and instruction of the public, such as B. fonts of the statistical offices, rule books, dictionaries or map collections are fully protected by copyright.
Editing and redesigning of official works are permitted to the full extent, and they may also be reproduced in a misleading manner, which a judge, for example, as the author of a judgment, could not defend himself against, even with reference to his moral rights. However, the adaptations themselves enjoy full copyright protection. Likewise, the use of collections of judgments or editorial principles that represent a creative achievement is not permitted without consent.
The depiction of banknotes is generally permitted, however, reproductions that could be mistaken in accordance with Section 128 (1) no. 2, Section 131 (1) no. 4b OWiG as duplicates prosecuted under administrative offense law.
Notification of the content of a work
Whether § 12 UrhG contains a limitation provision is controversial. If it is forbidden by the author to communicate the content of his work prior to publication, his right to control the content after publication is reversed, argue proponents of the limit assumption.
Time limitation of copyright
General
Sections 64 ff. UrhG regulate the time limitation of copyright. Paragraph 64 of the Copyright Act stipulates that copyright protection exists only for the life of the author and a period of 70 years after his death. A 70-year term of protection applies to all works whose authors were not yet 70 years dead in 1965 (proclamation of the UrhG). If a work that has not yet been published by the end of this period (see Section 6 (2) UrhG) is published, publicly reproduced or published for the first time, the person responsible for this receives a 25-year ancillary copyright according to Section 71 (1) UrhG. As a rule, photographic works enjoy the same duration of protection (cf. § 137a UrhG). The limitation of the term of protection leads to the loss of the entire copyright protection; the work will be in the public domain after the deadline .
Calculation of the term of protection
Basically, according to § 64 UrhG, the death of the author (in the case of co-authorship from the death of the longest living co-author, § 65 Paragraph 1 UrhG) is counted on. With regard to audiovisual works, Section 65 (2) applies a special rule due to the unmanageable number of possible co-authors and limits the group of persons relevant for the expiry of the term of protection to the main director , screenwriter , dialogue writer and the composer of the film music . In the case of work connections, the term of protection for each of the connected works is determined after the death of its creator; In the case of collective works, it runs separately for the collective work as such and the individual contributions.
In exceptional cases, however, the time of appearance or publication is also calculated. This is the case with anonymous publications or with pseudonymous publications if the actual author is not known beyond doubt. If there is no publication, the term of protection starts from the time the work was created. The term of protection is calculated according to the general rules of §§ 64, 65 UrhG, if the real author reveals his identity within the 70 years, his pseudonym leaves no doubt about his identity ( § 66 Abs. 2 S. 1 UrhG), or the name becomes known through entry in the author's role (§§ 66 Paragraph 2 Sentence 2, 138 UrhG). Only the author, his legal successor (usually the heirs) or the executor of the will is entitled to do so, Section 66 (3) UrhG. If partial works are published anonymously or pseudonymously, the deadline is calculated separately, Section 67 UrhG.
According to § 69 UrhG, the respective periods begin at the end of the current calendar year.
Situation in European comparison
Individual evidence
- ↑ Wandtke / Bullinger / Lüft, before § 44a ff Rn. 1.
- ↑ BGH, judgment of April 27, 2017 - I ZR 247/15 (AIDA Kussmund) = GRUR 2017, 798, Rn. 17th
- ↑ BVerfG, GRUR 2001, 149 - Germania 3
- ↑ Janina Brandes: 8 questions on volatile reproductions in the Telemedicus network , July 7, 2011.
- ↑ a b BGH GRUR 1978, 474 - copies.
- ↑ Fromm / Nordemann / Nordemann, § 53 Rn. 3; Schack, ZUM 2002, 497.
- ↑ BGH, judgment of November 12, 1992 - I ZR 194/90
- ↑ Publication of the law in the Federal Gazette (PDF)
- ↑ Explanations of the Ministry ( Memento of the original from January 9, 2018 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Wandkte / Bullinger / Lüft, before §§ 44a ff. Rn. 4th
- ↑ Schack , Copyright Rn. 582, contrary to Peifer , Individuality in Civil Law, p. 101 f.
literature
Comments
- Thomas Dreier, Gernot Schulze: Copyright Act, Copyright Administration Act, Art Copyright Act, Commentary . 2nd Edition. Beck, Munich 2006, ISBN 3-406-54195-X
- Friedrich Karl Fromm / Wilhelm Nordemann / Paul Hertin / Kai Vinck: " Copyright - Commentary on Copyright and the Copyright Management Act ", 9th edition Stuttgart 1998 ( Kohlhammer Verlag ) ISBN 3-17-015018-9
- Gerhard Schricker : Copyright . 3rd edition, Beck, Munich 2006, ISBN 3-406-55125-4
- Artur-Axel Wandtke , Winfried Bullinger: Practical commentary on copyright . Beck, 4th edition 2014, Munich, ISBN 3-406-53423-6 - Review of the 2nd edition here in full text on www.digitalrecht.de (PDF; 1.2 MB)
Teaching
- Nils Beier: The copyright protection period: a historical, comparative law and dogmatic investigation of the time limit, its length and its harmonization in the European Community . Verlag CH Beck, Munich 2001, ISBN 3-406-47216-8
- Christian Brauns: The freedom to borrow in the copyright law . In: Archive for Copyright and Media Law (UFITA) 2001
- Volker Ilzhöfer: Patent, trademark and copyright law - guidelines for training and practice . 6th edition. Verlag Franz Vahlen, Munich 2005, ISBN 3-8006-3121-0 )
- Ulrich Loewenheim : The use of works protected by copyright at trade fairs and exhibitions . In: Commercial legal protection and copyright , 1987, p. 659 (659ff.)
- Manfred Rehbinder : Copyright . 14th edition. Verlag CH Beck, Munich 2006, ISBN 3-406-54226-3
- Reschke, Johannes: The constitutional and three-stage test-compliant interpretation of the limits of copyright law - at the same time a review of § 52b UrhG V&R unipress, Göttingen 2010, ISBN 978-3-89971-656-6
- Haimo Schack : Copyright and Copyright Contract Law . 4th edition. Verlag Mohr Siebeck, Tübingen 2007, ISBN 3-16-148595-5
Jurisprudence
- BGH in GRUR 2003, p. 1035 (1035ff.) (Substitute for the principle of participation)
- BGH in GRUR 1994, p. 800 (800ff.) (Museum catalog - deviations from the principle of participation in order to maintain the barrier)
- BGHZ 1999, p. 162 (162ff.) (Substitute for the rule-exception relationship & analogy)
- BGH in GRUR 1978, p. 474 (474ff.) (Number of permissible copies in the private sector)
- BGH in GRUR 1960, p. 338 (338ff.) (Use of works in the private sector)
- Higher Regional Court Munich in NJW 1989, p. 404 (404 ff.) (Restriction of copyright protection if the work is only used as an insignificant accessory)
- BGH in GRUR 1987, p. 363 (363 ff.) (Reasonableness of the copyright barrier "quote")
- BVerwG in NJW 1991, p. 118 (118 ff.) (On public speeches)
- OLG Munich in ZUM 2000, p. 246 (246 ff.); BGHZ 37, p. 1 (1 ff.) (Both on newspaper articles and radio commentaries)
- OLG Frankfurt in ZUM 1985, p. 214 (214 ff.) (Reporting on current events)
