Copyright in public speaking

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In most countries of the world, public speeches are protected by copyright like all other linguistic products, provided they meet the general work requirements (height of creation ). However, the copyright laws of many countries allow public speeches to be used under certain circumstances without the consent of the author of the speech .

International agreements and EU law

There are no regulations for the protection and exploitation of public speeches in general in the major multilateral international copyright agreements. Political speeches, however, have a special status. The revised Berne Convention (RBÜ) expressly states in Art. 2 to Paragraph 1 that the "legislation of the member states [...] [is] reserved] to partially or completely exclude political speeches and speeches in court hearings from the protection provided for in Article 2" ". This regulation has been in the RBC since the Rome revision in 1928. It is based on a proposal by the Japanese delegation and is to be seen against the background that the contracting states were divided as to whether “oral works” even benefited from copyright protection should come. Ultimately, a compromise was reached to include these expressly in the catalog of protected works in Article 2, Paragraph 1, but at the same time not to prescribe the protection of political speeches and speeches in court hearings. Previously, some delegations that were actually in favor of the protection of oral works had also recognized a strong public interest in the accessibility of public speaking.

In the copyright of the European Union , the InfoSoc Directive ( Directive 2001/29 / EC ) allows the member states to provide exceptions to or restrictions of copyright with regard to the exclusive right of the author to reproduce, publicly reproduce and distribute his work

"For the use of political speeches or excerpts from public lectures or similar works or subject matter, insofar as the purpose of the information justifies this and if - except in cases in which this proves to be impossible - the source, including the name of the author, is given . "

- Art. 5 para. 3 lit. f InfoSoc-RL

The three-stage test (Art. 5, Paragraph 5 of the InfoSoc-RL) also applies to this exemption - just as it does to the other optional barriers .

Germany

According to the German Copyright Act (UrhG), speeches are among the language works protected by copyright ( Section 2 Paragraph 1 No. 1 UrhG); a physical definition (writing, recording or the like) is not required. The same protection requirements apply to speeches as to all other linguistic products (writings, etc.).

For public speeches, however, § 48 UrhG provides a separate limitation regulation in order to facilitate their use. Then applies:

"(1) Permissible is
1. the reproduction and distribution of speeches on issues of the day in newspapers, magazines as well as in other printed matter or other data carriers that essentially take into account the interests of the day, if the speeches are held at public meetings or by public communication within the meaning of § 19a or § 20 have been published, as well as the public reproduction of such speeches,
2. the reproduction, distribution and public reproduction of speeches that were given in public negotiations before state, communal or church bodies.
(2) However, it is not permitted to reproduce and distribute the speeches referred to in Paragraph 1 No. 2 in the form of a collection which predominantly contains speeches by the same author. "

The regulation essentially distinguishes between two types of speeches: speeches on issues of the day (Paragraph 1 No. 1) and speeches at public events (Paragraph 1 No. 2).

  • Talking about issues of the day. The limitation to "daily questions" is usually understood in the literature to mean that the statements at the time of the speech contribute to the formation of current opinions, which usually requires a close reference to the time at which the subject of the discussion took place. According to the official justification, speeches of a scientific or literary nature should not fall into the category of speeches on issues of the day, even if they are given on the occasion of a daily event. If the speech is given at a “public meeting”, it does not matter that the number of spectators is limited due to local conditions or that entrance fees are required. Typical examples of this are typically speeches at election campaign appearances or demonstrations. “Published by public reproduction within the meaning of Section 19a or Section 20 UrhG” ​​is a speech specifically when it is broadcast (for example on the radio or as a live stream on the Internet) or made publicly available (for example as a YouTube video).
  • Speeches at public events. The public negotiations in Paragraph 1 No. 2 include, in particular, parliamentary speeches . In court hearings, special provisions regarding the admissibility of sound and film recordings must be observed; stenographing is permitted. In contrast to the speeches on issues of the day, such speeches may not only be used in certain daily media (newspapers etc.) without consent, but also, in whole or in part, freely on the Internet.

The exemption of § 48 UrhG only refers to the speech as such, not to mediating works and products of third parties. For example, a television broadcaster can itself record a trade unionist's speech at a rally on film and then broadcast it on the evening news without approval, citing Section 48 (1) No. 1. The television broadcaster may not simply use the recording from another broadcaster for this purpose, since the other broadcaster itself holds rights to this recording ( motion picture protection ).

The prohibition of changes ( § 62 UrhG) and the requirement to cite the source ( § 63 UrhG) always apply . The source must always be quoted “including the name of the author, unless this is not possible” ( Section 63 (2) sentence 2 UrhG). In accordance with Section 62 (2) UrhG, speeches can also be reproduced in abbreviated form if this is required by the purpose of use and if there is no misrepresentation. The author can take action against distortions ( § 14 UrhG). The inclusion in a person-specific collection of speeches (for example: "Heinrich Lübke's greatest speeches") is expressly not possible without approval according to § 48 paragraph 2 UrhG.

Austria

Austrian copyright law protects linguistic works regardless of whether or not they are specified in writing or otherwise, so that the normal protection criteria apply to speeches that also apply to other linguistic products.

According to Section 43 (1) of the Austrian Copyright Act (öUrhG), however,

Speeches given in a public gathering or in proceedings before the courts or other authorities, as well as public political speeches [...] reproduced, disseminated, publicly presented, broadcast and made available to the public for reporting purposes be made."

Essentially three types of speech are recorded here, which have different distinguishing features: The first two alternatives are about the place where the speech is given. If this is a general (norm-setting) representative body (for example: National Council, Federal Council, Federal Assembly, Landtag, municipal council, etc.) or an authority (for example: pleading or oral judgment in a courtroom), the speech falls under Regulation. Where the equally privileged political speech is given, on the other hand, is irrelevant as long as it is given in public . The type of political statement (domestic, sociopolitical, etc.) does not matter. This includes campaign speeches and statements at (political) press conferences, among other things. According to a decision by the Supreme Court, however, there is no “political speech” if a former politician publishes an article on his website in which he explains his personal position on his exclusion from the party.

The exploitation must take place for the purpose of reporting, which includes reports on television as well as those in print media or on the Internet (media neutrality). When using the speech, the source including the author's name must always be given, unless, in exceptional cases, this cannot be found (Section 57, Paragraph 3a, line 2 of the Austrian Copyright Act). The inclusion of the speech in a collection of speeches is expressly not covered by the limitation and must therefore be approved by the author (Section 43 (3) Austrian Copyright Act).

The limitation of § 43 Abs. 1 ÖUrhG, already inserted with the introduction of the Copyright Act of 1936, followed § 5 Abs. 1 ÖUrhG [1920], according to which speeches and lectures held at negotiations or meetings in public affairs were generally excluded from copyright protection . In 1936, this regulation seemed too extensive to the legislature, so that a corresponding limitation regulation was created instead. According to the explanatory remarks, it is motivated by the "public [] interest in the unlimited dissemination of such speeches, which incidentally often also corresponds to the speaker's intentions". The barrier construction also ensures that the author of the speech can defend himself against the distortion of his speech based on his moral right, for example.

Switzerland

The usual protection requirements for speech works apply to speeches in Switzerland - regardless of whether they are also recorded in writing or not. There is no difference between written works and speeches in terms of copyright law (cf. Art. 29, Paragraph 1 of the Copyright Act [URG]).

The old Swiss Copyright Act of 1922 provided, right up to the end, in Art. 24 URG expressly a freedom of reproduction of speeches in the context of reporting on the public event on which they are being held. The exception at the time ceased to exist with the amendment to the URG in 1992 (BBl 1992 VI 74). In some cases, however, the use of public speeches has since been justified by Art. 28 Para. 1 CopA (reporting on current events). According to this, "insofar as it is necessary for reporting on current events [...] the works perceived in the process may be recorded, reproduced, presented, broadcast, distributed or otherwise made perceptible". In principle, this exception can also be used for (excerpts from) public speeches. The freedom of reproduction is, however, subject to the restriction that the scope of the copyright infringement (specifically about the length of an excerpt shown on television) is justified by the information purpose. In addition, “reporting” must take place, in the context of which the work (speech) is made perceptible - a mere isolated perception (for example: a pure live broadcast) is not included.

literature

  • Axel Beater: Copyright barriers, concept of work and media information . In: Hans-Jürgen Ahrens, Joachim Bornkamm, Hans Peter Kull-Hallstein (eds.): Festschrift for Eike Ullmann . Juris, Saarbrücken 2006, ISBN 978-3-938756-10-2 , pp. 3-21 . [Germany]
  • Albrecht Götz von Olenhusen, Jürgen Hermanns: tapes, images, radio and television recordings in local parliaments . In: Archives for press law . tape 14 , no. 4 , 1983, p. 437-444 . [Germany]

Web links

Remarks

  1. ↑ Ricketson / Ginsburg, International Copyright and Neighboring Rights , Vol. 1, 2nd ed. 2005, § 8.16.
  2. ↑ On all of this: Ricketson / Ginsburg, International Copyright and Neighboring Rights , Vol. 1, 2nd edition 2005, § 8.16 f.
  3. ↑ See Art. 5 Para. 4 InfoSoc-RL.
  4. ↑ Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 2 Rn. 47.
  5. ↑ See Dreier in Dreier / Schulze, Copyright , 6th edition 2018, § 48 marginal no. 3 ff.
  6. ↑ Dreier in Dreier / Schulze, Copyright , 6th edition. 2018, §§ 48 Rn. 5, 49 para. 8th; Dustmann in Fromm / Nordemann, copyright , 12th edition 2018, § 48 marginal no. 7th
  7. ↑ BT-Drs. 10/837 , p. 65; Melichar in Schricker / Loewenheim, copyright , 5th edition 2017, § 48 marginal no. 4. Kritisch Beater, Copyright Barriers, Concept of Work and Medial Information , 2006, op. Cit., P. 10 f .: Copyright interests can also be taken into account by the fact that, for example, in a scientific lecture, only the parts with relevance to the current situation may be adopted; similar to Dustmann in Fromm / Nordemann, copyright , 12th edition 2018, § 48 marginal no. 7th
  8. ↑ Dreier in Dreier / Schulze, Copyright , 6th edition. 2018, § 48 Rn. 6; Melichar in Schricker / Loewenheim, copyright , 5th edition 2017, § 48 marginal no. 5.
  9. ↑ Melichar in Schricker / Loewenheim, copyright , 5th edition 2017, § 48 marginal no. 5
  10. ↑ Melichar in Schricker / Loewenheim, copyright , 5th edition 2017, § 48 marginal no. 14th
  11. ↑ Dreier in Dreier / Schulze, Copyright , 6th edition. 2018, § 48 Rn. 9.
  12. ↑ Dustmann in Fromm / Nordemann, Copyright , 12th edition. 2018, § 48 Rn. 10.
  13. ↑ Melichar in Schricker / Loewenheim, copyright , 5th edition 2017, § 48 marginal no. 16.
  14. ↑ Dustmann in Fromm / Nordemann, Copyright , 12th edition. 2018, § 48 Rn. 13.
  15. ↑ Ciresa in ders., Austrian copyright law , as of: 19th EL 2017, § 2 Rn. 2.
  16. ↑ Korn in Kucsko, copyright , 1st edition 2008, p. 750 f. See also Streit in Höhne et al., Copyright for Practice , 2nd Edition 2016, p. 317.
  17. ↑ Korn in Kucsko, copyright , 1st edition 2008, p. 751; Controversy in Höhne et al., Copyright for Practice , 2nd edition 2016, p. 318.
  18. ↑ Korn in Kucsko, copyright , 1st edition 2008, p. 751 f.
  19. ^ Controversy in Höhne et al., Copyright for Practice , 2nd ed. 2016, p. 318.
  20. ↑ OGH November 19, 2002, 4 Ob 230 / 02f = MR 2003, 38, 40 (with note Walter) = ÖBl 2003, 283, 285 (with note Burgstaller) - meischi.at .
  21. ↑ Korn in Kucsko, copyright , 1st edition 2008, p. 752; Controversy in Höhne et al., Copyright for Practice , 2nd edition 2016, p. 319.
  22. ↑ Dillenz / Gutman, Commentary on UrhG & VerwGesG , 2nd edition 2004, § 44 Rn. 4; Korn in Kucsko, copyright , 1st edition 2008, p. 752; Controversy in Höhne et al., Copyright for Practice , 2nd edition 2016, p. 319 f.
  23. ↑ Explanatory remarks on the Copyright Act 1936, cited above. after Walter Dillenz, materials on Austrian copyright law , Manz, Vienna 1986, ISBN 3-214-07702-3 , p. 113.
  24. ↑ Explanatory remarks on the Copyright Act 1936, cited above. after Walter Dillenz, materials on Austrian copyright law , Manz, Vienna 1986, ISBN 3-214-07702-3 , pp. 55, 113.
  25. ↑ Explanatory remarks on the Copyright Act 1936, cited above. after Walter Dillenz, materials on Austrian copyright law , Manz, Vienna 1986, ISBN 3-214-07702-3 , p. 113.
  26. ^ Rintelen, Copyright and Copyright Contract Law , 1958, p. 141.
  27. ↑ v. Büren / Meer in v. Büren / David, Copyright and Related Rights , 3rd edition 2014, Rn. 201; Hilty, Copyright , 2011, para. 98
  28. ^ Troller, Immaterialgüterrecht , Vol. 2, 3rd ed. 1985, p. 710.
  29. ↑ Bernhard Wittweiler, On the barriers in the new copyright law (excluding personal use) , in: Current legal practice , Vol. 2, No. 5, 1993, pp. 588-593, here p. 590.
  30. ↑ Barrelet / Egloff, The new copyright , 3rd edition 2008, Art. 28 Rn. 10; Bernhard Wittweiler, On the barriers in the new copyright law (excl. Personal use) , in: Current legal practice , Vol. 2, No. 5, 1993, pp. 588-593, here p. 590.
  31. ↑ Cherpillod in v. Büren / David, Copyright and Related Rights , 3rd edition 2014, Rn. 926.
  32. ↑ Hilty, Copyright , 2011, Rn. 233; Renold / Contel in de Werra / Gilliéron, Propriété intellectuelle , 1st edition 2013, Art. 28 LDA N 8.