Scientific expenditure protection
The protection of scientific editions is a so-called ancillary copyright in German copyright law . It is regulated in § 70 Law on Copyright and Related Rights (UrhG). It grants the author of a scientific edition of a work or text in the public domain the same rights as the creator of a work in terms of copyright, with the difference that a shorter protection period applies instead of the standard protection period. It was introduced in Germany in 1965 and was exemplary for similar provisions in other countries.
In contrast to the related regulation of the editio princeps ( § 71 UrhG), which has become better known through recent court decisions, § 70 UrhG continues to lead a wallflower existence - there is little case law and legal literature (and this too does not take note of editorial studies ). This is attributed to the fact that disputes are more likely to be resolved internally in the scientific community than in the courts. Traditionally, the paragraph has practical significance, especially in the field of music .
Legal text
Section 70 UrhG reads:
(1) Editions of works or texts not protected by copyright are protected in accordance with the provisions of Part 1 if they represent the result of scientific activity and differ significantly from the previously known editions of the works or texts.
(2) The author of the edition is entitled to the right.
(3) The right expires twenty-five years after the publication of the edition, but already twenty-five years after its production, if the edition has not appeared within this period. The period is to be calculated according to § 69 .
Purpose of the regulation
The purpose of § 70 UrhG is to place the considerable work often associated with the edition of bequeathed works and texts under comparable protection as the creative activities protected by the actual copyright. Without a regulation like that of § 70 UrhG, such forms of scientific publication, which involve a great deal of specialist knowledge, effort and costs, would not be protected in the same way from imitation, since German copyright law is based on one's own work and not the reconstruction of third-party work.
Scope and subject matter
The rights holder has all the rights of a normal author for the (shorter) period. However, the limitations of copyright law , such as the right to quote, also apply . The prerequisite for protection is that the published work (i.e. with the height of creation ) or the published text (not eligible for protection) is no longer protected or has never been protected ( public domain ). Works of language and music come into consideration in particular. The protection does not apply to the work itself, only to the edition. While § 71 UrhG (postponed works) prevents anyone from publishing the work independently, § 70 UrhG only prohibits recourse to the protected edition.
If an edition protected according to § 70 UrhG reproduces a posthumous work within the meaning of § 71 UrhG, the author of the edition, provided he is also the publisher within the meaning of § 71 UrhG, can dispose of both rights at the same time. The author favored by § 70 UrhG is always a natural person (i.e. a person), while the owner of the right under § 71 UrhG can also be a legal person (e.g. a publisher).
Output requirements
A more recent copyright comment says: “Protection [...] is not justified by the mere finding of an old document, but only by the scientifically founded production of a previously unknown original text. The decisive factor is the regulatory and balancing activity carried out according to scientific methods ( BGH GRUR 1975, 667, 668 - Reichswehr Trial) ”. This formulation is based closely on the official justification of the Copyright Act of 1965. “Paragraph 1 stipulates as a prerequisite for this ancillary copyright that the edition represents the result of scientific sifting activity and differs significantly from the previously known editions of the works or texts. The first requirement is intended to emphasize that the mere finding of an old document does not justify the protective right, rather only the scientifically founded production of a previously unknown original text. The second requirement is for legal certainty: If, for example, a musicologist determines through a text-critical examination that the previously unknown original version of an old piece of music corresponds completely or at least essentially to a known edition of this work, then a property right granted to the musicologist for his discovery would be granted to the original version not be enforceable in practice, since in the case of public reproductions of the work it could hardly ever be ascertained with certainty whether the original version or the free edition of the work was used. "
A scientific, especially text-critical apparatus, which itself can be protected as a work within the meaning of § 2 UrhG 70 years after the editor's death, is a weighty indicator of the scientific nature to be demanded. (For the strict criteria of the collecting society Musikedition for musical editions, see below.)
The edition must actually be new ("Production of a previously unknown original text"). It is therefore not sufficient to reproduce an older print verbatim or with a modernized language. The common production of e-texts, for example in the Gutenberg or Wikisource project, is usually not enough to create protection. Even if a facsimile edition is provided with a scholarly commentary, there is no protection, as the service must relate to the production of the text. There must therefore be a critical reconstruction service that differs significantly from previous editions.
In the case of a German edition that follows a key manuscript, but at the same time makes certain interventions in the text ( emendations ) or compares other manuscripts (see e.g. the old German edition company of the German texts of the Middle Ages ), the protection will have to be affirmed.
If, on the other hand, an edited “people's edition” is created by abbreviation and linguistic modernization, it may - in accordance with the protection of the Little Mint - be protected by copyright as a processing ; it is not eligible for protection under Section 70 UrhG. The legislature wanted to support the work of the scientist, who for the sake of the principle of faithfulness to the original has to forego creative additions. On the other hand, an edition should be protected according to § 70 UrhG, even if a careful linguistic modernization was carried out in accordance with the implicit or explicit edition guidelines.
A purely technical restoration, as is customary in film works , for example , is certainly not covered by the protective right, since the scientific achievement is missing.
Term of protection
As with other performance rights of the 2nd section of the UrhG, the term of protection has been 25 years since 1990 ( Section 70 (3) UrhG). However, it still deviates from the standard protection period in copyright law, which is why it can still be of considerable importance today whether a scientific processing also has its own creative achievement.
According to Section 69 UrhG, the period begins at the end of the calendar year in which the issue was published or produced. An edition published in 2000 is protected until December 31, 2025.
In order to prevent the eternal protection of unpublished editions, an editor has 25 years from the creation of the edition to make it appear. This provision is of no practical importance, especially since every publisher generally only regards an edition as "finished" (i.e. as created) when the publication is imminent. As soon as an edition is created in the manuscript, it is protected. If another scientist brings another edition to the market earlier, this is permitted, but it cannot displace the rights of the unpublished edition.
The transitional provision of § 137b UrhG has since become obsolete. The editions published (before 1980) whose protection period had not expired before July 1, 1990 and which should benefit from the extension to 25 years, can now be freely used.
Copyright contract law and collecting society
Standard scientific publishing contracts do not mention § 70 UrhG. The question therefore arises whether an editor automatically assigns the right under Section 70 UrhG to the publisher with the publishing contract . According to the doctrine of transfer of purpose , one can doubt that, but one also has to throw the author's contractual loyalty duty into the balance. However, it does not seem plausible to assume that an open access edition of the pure text on the Internet initiated by the editor a few years after publication would reduce the chances of winning the printed publisher's product.
Rights from § 70 , § 71 UrhG are exercised by the collecting society Musikedition in the field of music . It emerged from the interest group of musicological editors and publishers - IMHV , founded in 1967 . The collecting society has set up detailed criteria for the protection worthiness: "According to this, one can speak of a scientific sifting activity in any case, if the edition was created on the basis of an extensive source sifting and evaluation (whereby all available sources should be used), the source situation and editing principles as well as editing decisions in a so-called critical report or the like (which can itself be protected according to § 2 UrhG) and the musical text is typographically differentiated, i.e. the editor's additions are identified. An important indicator, but not a prerequisite, is the question of whether the edition is part of a scientific-critical complete edition. In addition, the reconstruction of an original text that has only survived in fragments can be protected under Section 70 UrhG if this reconstruction was carried out using musicological methods. In this case, however, it must always be checked whether protection according to § 2 , § 3 UrhG is not possible. "
History of the Protection of Scientific Editions
First forms of protection for scientific expenditure
As early as the 15th century, the discoverer or editor was granted protection of this work as a reward for the discovery or new edition of old texts. These were awarded as a privilege for the respective work. Such privileges have come down to us, for example, from the Republic of Venice in favor of Aldo Manucios for a Greek edition of Aristotle (1495), Ludovico Sforzas for fifteen ancient manuscripts found in the monastery of Bobbio in favor of Giorgio Merula and Giorgio Galbiato (1496) or an imperial privilege in favor of Conrad Celtis for his publication of the writings of Hrotsvit (1501). Decisive for the granting of monopolies for the exploitation of such texts were natural , economic, cultural and social aspects. From the different weighting of these aspects, two lines of copyright protection developed, on the one hand the copyright system of the Anglo-American legal system , and on the other hand the above all natural law Droit d'Auteur system of the continental European legal system . The continental European legal system does not want to protect the economic risk taker but rather the creator of the work based on natural law approaches. The protection of the publisher, who is not creative, but rather researching, contradicts the basic idea of continental European and thus German copyright law. Accordingly, there are hardly any express regulations on scientific works in the German states. Only the Prussian General Land Law of 1794 provided in Part I, Title 11 in §§ 1029 ff. Regulations that came close to today's § 70 UrhG.
Discussion and first drafts for the introduction of the protection of scientific issues
In the Kingdom of Saxony , an editor of a reprint of the institutions of Gaius in 1827/1829 was denied any copyright protection by the royal Saxon appellate court . The Exchange Association of German Booksellers took this opportunity to present the Saxon government in 1857 with the “Draft of a law for Germany for the protection of copyrights in works of literature and art against reprint and against unauthorized reproduction and performance” in § 2 lit. d a thirty year protection for the publication of historical texts and in § 4 lit. c to provide ten-year protection for corrections and critical edits of a text that are “to be considered new”. Together with an Austrian counter-draft from 1862, the draft was processed into a draft of an all-German copyright law presented to the Federal Assembly of the German Confederation in 1864 as a draft in Frankfurt . This all-German law until the dissolution of the Confederation in the Prague Peace Treaty of 1866 no longer came into existence. The Kingdom of Bavaria took over the protection of the publisher provided for in § 10 of the Frankfurt draft in § 11 of the "Royal Bavarian Law for the Protection of Copyrights in Literary Products and Works of Art" of June 25, 1865. Also the preliminary work in the North German Confederation for an all-German In a draft of 1868, copyright provided for the protection of the editor in § 2 and in § 4 the protection of the creator of corrections or critical editions. The "Reich Law on Copyright in Written Works, Illustrations, Musical Compositions and Dramatic Works" passed on June 11, 1870 only provided for copyright protection for the author himself and his heirs and legal successors. The reason for this was on the one hand legal dogmatic aspects. The protection of the editor basically runs counter to continental European legal traditions. In addition, it was believed that the interests of science were better served if scientifically prepared and not newly created works were also freely available to the rest of science. As a result, different legal theories were formed in order to solve the editorial problem in one way or another, but neither in Germany nor in other countries was there a satisfactory solution, despite the most varied approaches.
In the Austrian Copyright Act of 1936, a distinction was made for the first time between copyrights and related property rights (as they are regulated today in § § 70 ff. UrhG). A regulation similar to § 70 UrhG was not yet provided for in this, but Heinrich Mitteis suggested that such a related property right could be considered for particularly text-critical editions. This idea was taken up in 1939 by the so-called " Academy for German Law " for a new version of copyright law. A major difference to the current regulation, however, was that an own personal service was provided in the draft, since no distinction was made between creation and service.
Copyright Act 1965
It was not until the Copyright Act of 1965 that scientific editions were finally protected as a right “related” to copyright. The purpose of the introduction of the performance right was that even with minor creations a copyright protection in the sense of the “ little coin ” could arise, but not with scientifically complex editions that endeavored to be particularly faithful to the work . Copyright protection only existed as far as the editor himself was creative with footnotes or comments. The legislature wanted to eliminate these discrepancies. In 1965, the term of protection was only ten years because the legislature feared that the scientific work would be severely hindered. Before 1965 there was no comparable provision in the LUG . On July 1, 1990, the period was increased to 25 years because the short term of protection was no longer justifiable compared to other ancillary copyrights.
criticism
The regulations of the "related rights" in the 2nd section of the UrhG are seen in the literature as an expression of a society that is no longer characterized by self-creative achievement, but overestimates the interpretation and reception of existing works. A certain arbitrariness and inadequate systematics of protected rights are also criticized in the entire section. Ultimately, there is no uniform criterion for granting protection. Only when viewed superficially is the utilization of works a common feature of all property rights. The persons protected with rights in § 70 and § 71 UrhG would then also be unjustifiably preferred to performing artists, film entrepreneurs or database creators, since protection against reproductive services is also possible in the case of scientific editions or the publisher of posthumous writings ( § 71 UrhG) while the other, practically even more significant interpreting artists are only protected against direct takeovers, for example through unauthorized recordings.
Criticism can begin with the aim of the regulation to “reward” the scientific editing system. If most of the other EU states do not have any such law (and, one may assume, most German edition scholars are also unaware of it), without any noticeably less appreciation of academic editions in their area of law, the question arises as to whether the encroachment on the Academic freedom and the re- monopoly of content in the public domain is actually justified. A scientific full-text documentation of a certain text production, for example in a synoptic comparison to earlier editions, is prevented by § 70 UrhG. However, specifying variants from a protected edition must in any case be regarded as lawful, as this is part of the critical examination of previous editions.
Foreword, epilogue, factual comment (even in individual cases the register) of a scientific edition are protected as works within the meaning of § 2 UrhG almost always 70 years after the death of the author ( standard protection period ). You can always proceed against a reprint of the entire scientific edition - why then, critics argue, need a proprietary right for the critically produced text? Representatives of independent projects such as Wikisource point to the legitimate interest in being able to make the pure text of relevant modern editions available to a broad public " Open Access ".
Justification under European law and international legal situation
German property right is protected under European law by the term of protection directive 93/98 / EEC of 1993 (Article 5). Member States can protect critical and scholarly editions of works that have become public domain with copyright. The protection period for such rights is a maximum of 30 years from the date of the first permitted publication. In accordance with this requirement, the German legislature could add another five years to the previous protection period.
Member States are not obliged to grant this right. Most have refrained from it. However, the publisher lobby is working to make the optional requirement binding for all states. Slovenia has exhausted the thirty-year framework to the full and based Article 141 of its copyright law on the German regulation. Such a regulation has also been in place in Poland since 2000.
Outside the EU, Armenia grants thirty years of protection for Critical and Scientific Editions of Works in Public Domain in its 2006 Copyright Act (Articles 57, 61).
The USA has no specific protection right for scientific editions. In Great Britain , Spain and other countries there is a property right for the typographical design of book editions for a period of 25 years, which among other things concerns the unchanged reprint of scientific editions (see legal protection of characters ).
Individual evidence
- ↑ Ulrich Loewenheim in: Gerhard Schricker (Ed.), Copyright , 3rd edition, Verlag CH Beck, Munich 2006, ISBN 3-406-53783-9 , § 70 paragraph 2
- ↑ See Günther Gentz, Protection of Scientific and First Editions in the Musical Sector , Archive for Copyright, Film, Radio and Theater Law (UFITA) Volume 52 (1969), 135
- ↑ Official justification for § 70 UrhG, BT-Drs. IV 270, page 87; Ulrich Loewenheim in: Gerhard Schricker (Ed.), Copyright , § 70 Paragraph 1
- ↑ Dreier in: Dreier / Schulze, Copyright Act, 2nd edition 2006, § 70 margin no. 7th
- ↑ Official justification
- ↑ For detailed information on the scientific standards for editors see http://www.mla.org/cse_guidelines (English).
- ↑ If the Court of Appeal (GRUR 1991, p. 596 - Schopenhauer edition) considered the modernization of spelling and punctuation as justifying intellectual property rights (Loewenheim, in Schricker , Copyright, 3rd Edition 2006, Rz. 6), this clearly contradicts the intention of the legislature .
- ↑ Georgios Gounalakis, Authorship for the Bible? , GRUR 2004, 996
- ↑ http://www.vg-musikedition.de/
- ↑ Cf. on the previous history of § 70 UrhG: Manfred Rehbinder, On the legal protection of the publication of historical texts , UFITA Volume 106 (1987), 225 (255 ff., 260 ff.)
- ↑ RGBl. 1870, 339-353
- ^ Heinrich Mitteis, Outline of Austrian Copyright Law according to the Federal Act of April 9, 1936 , Vienna 1936, p. 29
- ^ Draft of a copyright law on the basis of the official draft 1933 , GRUR Volume 44 (1939), 242 ff.
- ↑ Cf. on the previous history of § 70 UrhG: Manfred RehbinderUFITA Volume 106 (1987), 225 (256 ff., 260 ff.)
- ^ Hertin in: Nordemann / Vinck / Hertin, copyright , 9th edition, Kohlhammer-Verlag, Stuttgart, Cologne, Berlin, 1998, ISBN 3-17-015018-9 , § 70, paragraph 1
- ↑ BT-Drs. 11/4929 of July 7, 1989
- ↑ Hertin in: Wilhelm Nordemann / Kai Vinck / Paul W. Hertin, before Section 70, paragraph 3
- ↑ Hertin in: Nordemann / Vinck / Hertin, copyright , before § 70 , paragraphs 4, 5
- ^ Paul W. Hertin: Copyright , Verlag CH Beck, Munich 2004, Rn 410
- ↑ See for example http://archiv.twoday.net/stories/230198/
- ↑ Council Directive 93/98 / EEC (PDF) of October 29, 1993 on the harmonization of the term of protection of copyright and certain related rights
- ↑ COMMISSION STAFF WORKING PAPER on the review of the EC legal framework in the field of copyright and related rights , Commission of the European Communities, July 19, 2004 (PDF; 74 kB) p. 12 (English).
- ↑ The Legal Background of the Book Sector in Central and Eastern Europe, the Balkans and Central Asia , Publishing Legislation Online Project (PLOP) ( Memento of the original of September 25, 2006 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.
- ↑ http://www.unece.org/ceci/pdfs/past/iprep/pola.pdf - Article 99
- ↑ Archived copy ( Memento of the original dated May 12, 2008 in the Internet Archive ) Info: The 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.
- ^ Copyright, Designs and Patents Act 1988 , sect. 15 .
- ↑ Ley de Propiedad Intelectual , art. 129.2 , art. 130.2 .
literature
- Dreier / Schulze, Copyright Act, 2nd edition Munich 2006
- Schricker , Copyright Act, 3rd edition Munich 2006
