School book privilege

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A school book privilege is a limitation in German copyright law that enables (among other things) publishers of school books to use texts protected by copyright without the consent of the respective author or right holder.

Term and legal basis

The concept of school book privilege only came into use after the copyright law came into force .

Until the Copyright Knowledge Society Act (UrhWissG) came into force on March 1, 2018, the regulation of the textbook privilege was found in Section 46 of the Copyright Act (UrhG). After that, the last was allowed

"The duplication, distribution and making available to the public of parts of a work, of linguistic works or of works of music of small size, of individual works of the visual arts or individual photographic works as an element of a collection that unites works of a larger number of authors and those of their own Condition is only intended for use in teaching in schools, in non-commercial institutions for training and further education or in institutions for vocational training or for church use. The making available to the public of a work intended for classroom use in schools is only permitted with the consent of the person entitled. "

The regulation applied not only to the use of work (parts) in work collections for school use, but also to their use for church use and for other teaching purposes (e.g. at a university). To the extent that, as is sometimes the case, the (entire) limitation of § 46 UrhG was designated with the term “school book privilege”, this designation was actually used pars pro toto .

The Copyright Knowledge Society Act split the previous Section 46 UrhG. The barriers to use in school books are now included in § 60b UrhG. According to paragraph 1

"Manufacturers of teaching and teaching media [...] for such collections reproduce, distribute and make publicly available up to 10 percent of a published work."

The author is entitled to appropriate remuneration for such uses. The claim for remuneration can only be asserted by a collecting society .

history

The Prussian Copyright Act of 1837 contained an exemption from the use of works in school books in Germany for the first time. According to this, "[a] ls reprinting was not to be seen: [...] the inclusion of individual essays, poems, etc. in [...] collections for school use". This model was soon followed by a number of other member states of the German Confederation in their copyright laws.

According to the unified copyright law of the North German Confederation passed in 1870, “the verbatim citing of individual passages or smaller parts of an already published work or the inclusion of already published writings of a smaller extent in [...] collections consisting of works by several writers on church, school and Classical use [...] are organized [,] "not to be regarded as a reprint. The prerequisite was the indication of the author or the source used. In addition to written works, the exception also applied to scientific drawings and illustrations. It was also permitted, also with the obligation to indicate the source or author, "citing individual passages of an already published work of music art, the inclusion of already published smaller compositions in [...] collections of works by various composers for use in schools, excluding music schools" .

The Art Protection Act of the German Reich passed in 1876 (into which the North German Confederation had meanwhile been incorporated) did not contain any exceptions for works of the visual arts expressly referring to school use. However, "the inclusion of replicas of individual works of the visual arts in a written work, provided that the latter appears as the main item and the images only serve to explain the text" was not to be regarded as a reprint. Here, too, there was an obligation to indicate the author or source.

In 1902 the LUG came into force in the German Reich for works of literature and music. A school book privilege was also included there. Specifically, the reproduction of a work of literature or music was permissible “if individual essays of small size, individual poems or smaller parts of a written work are included in a collection after publication, the works of a large number of writers are combined according to their nature for church, school or classroom use [...] is intended ". The exemption was to be interpreted narrowly. The Dresden Higher Regional Court denied that a collection of poems had the property of textbooks because the provision for school use "[i] in both the expression and the internal character of the work [...] must be recognized and expressed" and in the event of a dispute the collection should be viewed from the outside as "An anthology intended and suitable for the general public". With regard to musical works, according to the LUG, it was permissible "after publication to include smaller compositions in a collection that combines works from a larger number of composers and, according to their nature, is intended for teaching in schools excluding music schools". In the Art Copyright Act (KUG) of 1907, a similar regulation was found for works of the fine arts and photography: “Duplication and distribution is permitted if individual works are used exclusively in an independent scientific work or in written work intended for school or teaching use to explain the content. ”The prerequisite was the indication of the source and also that the work in question has already appeared or is on permanent public display.

A remuneration obligation did not yet exist under the LUG and the KUG, but was discussed again and again later. The draft bill (1954), the ministerial draft (1959) and the government draft (1962) for the introduction of the copyright law each adhered to the school book privilege, but wanted to prove this from now on with an obligation to pay remuneration. However, the Federal Council rejected the obligation to pay remuneration in the legislative process - it was no longer included in the compromise solution found in the mediation committee. The Copyright Act 1966 thus initially came into force with a royalty-free school book privilege. In a decision of July 7, 1971, the Federal Constitutional Court declared the school book privilege to be unconstitutional if it was granted without the right to remuneration. The legislature then changed the provision and stipulated that the author "has to be paid appropriate remuneration for the reproduction and distribution [...]". The remuneration claim is exercised by VG Wort , which concluded a general agreement with the Association of School Book Publishers in 1977.

literature

  • Till Neumann: Copyright and School Use: A Comparative Study of the Legal Basis and Perceptual Practice . Nomos, Baden-Baden 1994, ISBN 3-7890-3220-4 .
  • Susen Sattler: The status quo of copyright barriers for education and science: an investigation based on convention and European law as well as constitutional requirements . Nomos, Baden-Baden 2009, ISBN 978-3-8329-4031-7 .

Remarks

  1. ↑ See Sattler, The status quo of copyright barriers for education and science , 2009, op.cit., P. 108.
  2. ↑ § 46 Paragraph 1 Clause 1 and 2 UrhG old version
  3. ↑ In this sense, for example Dustmann in Fromm / Nordemann, Copyright , 11th edition 2014, § 46 Rn. 1; Sattler, The Status Quo of Copyright Barriers to Education and Science , 2009, op. Cit., P. 107 f .; Winfried Schulz, For the protection of intellectual property in the system of canonical law , Vahlen, Munich 1973, ISBN 3-8006-0299-7 , p. 122. Corresponding to the meaning of the word: Neumann, Copyright and School Use , 1994, op. Cit., Esp P. 24, 111 (textbook privilege "contained" in § 46 UrhG); similar to Wolf von Bernuth, § 46 UrhG and Multimedia Directive , in: Commercial legal protection and copyright, international part , vol. 51, no. 7, 2002, pp. 567-571, here p. 567.
  4. ↑ § 60h Abs. 1 UrhG.
  5. ↑ § 60h Abs. 4 UrhG.
  6. ↑ Neumann, Copyright and School Use , 1994, op.cit., P. 31.
  7. ↑ § 4 Law of June 11, 1837, for the protection of the ownership of works of science and art against reprinting and reproduction, printed by Christian F. Eisenlohr, collection of laws and international treaties for the protection of literary and artistic property in Germany, France and England, Bangel and Schmitt, Heidelberg 1856 (digitized via Bayerische Staatsbibliothek, urn : nbn: de: bvb: 12-bsb10601249-7 ), p. 54 ff.
  8. ↑ Neumann, Copyright und Schulgebrauch , 1994, op. Cit., P. 32. For example Braunschweig (§ 4 No. 2 Law for the Protection of Ownership of Works of Science and Art of February 10, 1842), Austria (§ 5 lit b Law of October 19, 1846) and Sachsen-Weimar-Eisenach (§ 4 No. 2 Law for the Protection of Ownership of Works of Science and Art against Reprinting and Reproduction of January 11, 1839), each printed by Christian F. Eisenlohr , Collection of the laws and international treaties for the protection of literary and artistic property in Germany, France and England, Bangel and Schmitt, Heidelberg 1856 (digitized via Bayerische Staatsbibliothek, urn : nbn: de: bvb: 12-bsb10601249-7 ).
  9. ↑ § 7 Law on the Copyright of Written Works, Illustrations, Musical Compositions and Dramatic Works, Federal Law Gazette of the North German Federation 1870, No. 19, p. 339 .
  10. ↑ Section 45 of the Act on Copyright in Written Works, Illustrations, Musical Compositions and Dramatic Works.
  11. ↑ Section 47 of the Act on the Copyright of Written Works, Images, Musical Compositions and Dramatic Works.
  12. ↑ § 6 No. 4 of the Law on Copyright in Works of the Fine Arts (Art Protection Act), Deutsches Reichsgesetzblatt 1876, No. 2, p. 4 .
  13. ↑ § 6 No. 4 Sentence 2 Art Protection Act.
  14. ↑ § 19 No. 4 Law on Copyright in Works of Literature and Music (LUG), Deutsches Reichsgesetzblatt 1901, No. 27, p. 227 .
  15. ↑ OLG Dresden, ruling from January 25, 1905 = GRUR 1907, 303, 303.
  16. ↑ § 21 No. 3 LUG.
  17. ↑ Section 19, Paragraph 1, Clause 1 of the Act on Copyright in Works of Fine Arts and Photography (KUG), Deutsches Reichsgesetzblatt 1907, No. 3, p. 7 .
  18. ↑ § 19 Paragraph 1 Clause 2, 2 KUG.
  19. ^ Neumann, Copyright and School Use , 1994, op. Cit., P. 38 f.
  20. ^ Neumann, Copyright and School Use , 1994, op.cit., P. 39.
  21. ↑ BVerfGE 31, 229 , 243 ff. - Churches and school use .
  22. ↑ § 46 para. 4 aF inserted as part of the Copyright Act amendment 1972, BGBl. 1972 I, p 2081 .
  23. ↑ Dustmann in Fromm / Nordemann, UrhG , 11th edition 2014, § 46 Rn. 18th