copyright

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The copyright initially refers to the subjective and absolute right to protection of intellectual property in ideal and material respects. As objective law , it comprises the sum of the legal norms of a legal system that regulate the relationship between the author and his legal successors to his work ; it determines the content, scope, transferability and consequences of the violation of subjective rights.

history

Right families

In copyright law, the land protection principle applies . The applicable law is always determined by the legal system of the state in which protection is claimed.

German legal circle

Romanic legal system

Common law

Mixed law

Object of copyright

Legislative engineering

The protected object of copyright is a work of art in all legal systems . In legal history, the enumerative form was first chosen as a legislative technique to define what should be protected as a work . However, in order to be able to adequately record technical innovations in terms of copyright, the general clause soon prevailed. Most legal systems today, based on the influential revised Bern Convention of 1908, rely on a mixed type: First, the object of protection is defined in a general and broad form (Germany: "Works of literature, science and art", France: "œuvre de l ' esprit "according to Art. L.112-18 CPI ), however, supplemented by lists. In accordance with the legal tradition of common law , the British Copyright, Designs and Patents Act 1988 and the US Copyright Act of 1976 focus on longer lists with differentiated legal definitions at the beginning of the laws.

Requirement of physical determination ("fixation")

A minority of legal systems only grant copyright protection on the condition that 1. there is a physical definition of the work and this 2. is physically stable or permanent ("permanent or stable", § 101 Copyright Act of 1976) . The best known example is Section 102 (a) of the Copyright Act of 1976:

“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be […] communicated ”

In addition to this first group, which is particularly widespread in common law , three other groups can be identified: 2. those that require a constant physical determination only for certain types of work - especially choreographies - 3. those that do not offer any regulation and 4. those, who expressly deny such a requirement.

Requirement of originality

The requirement of originality is one of the core elements of modern copyright law. At the same time, it is a central element for the legitimation of copyright protection. Legally, there are two ways of describing this characteristic: By describing the development process or by describing the result ; usually a combination of both is chosen. In the legal systems of continental Europe, the aspect of the author's personality is in the foreground: the work should be protected because it is a piece of alienated, as it were materialized personality of the author. Based on this approach, the object of copyright is determined accordingly - only that which is an expression of the creator's innermost personality is worthy of protection. Language, painting technique or historical data and events can therefore not be the object of copyright.

Individual types of work

Photographs

The photograph was in the artistic reputation historic first - because supposedly mere reproduction of reality - below the conventional art forms. Accordingly, it was recognized relatively late as an art form worthy of copyright protection. The legal regulations can be divided into three groups: In numerous legal systems, photographs are completely equal to the other art genres and enjoy regular copyright protection. In some other legal systems, photographs are divided into “artistic” photographs (photographic works) with full and “ordinary” or “simple” photographs (photographs) with a lower level of protection. Finally, there is a third group of legal systems that exempt photographs from copyright protection and subject them to a separate set of rules.

Copyright holder

Works by several authors

The cases of co-authorship can be divided into three broad groups:

  1. Arrangements: This includes those creations in which another work creates a new work on the basis of an existing work. An essential feature of this case group is that the original and the processing can be clearly distinguished from one another. The original remains completely unaffected by the adaptation and can still be used independently, but the editing cannot be used in a modified form without the original. This group of cases includes the œuvre composite ( Art. 113-2 CPI ) of French and derivative work (USC 17 § 101 ) of US copyright law.
  2. Compilations and anthologies: This case group is characterized by the fact that, although the creative contributions of the individual authors remain clearly separable, the individual contributions remain essentially unchanged. In this category fall compilations of German law, as well as compilations and collective works under US law.
  3. Joint works: In these cases at least two natural persons work together in such a way that a common end product is created. There is the possibility that the individual creative contributions can no longer be clearly assigned to a person in the end. The contributions often come from different genres ; a classic example of this is opera .

The third group is legally the most problematic from the point of view of multiple authorship: If genre boundaries are crossed, the question arises whether and when the contributions should be assessed as a single work. It must also be clarified which rights to the work the authors can assert against one another in the event of differences. A particular problem in this group is the construction of the œuvre collective, which is widespread in the Romance legal system .

A widespread and typical solution to the first two factual problems is offered by Section 11 UrhG-A: Accordingly, all co-authors are entitled to copyright. A change or exploitation of the copyright requires a unanimous decision by all authors. However, some legal systems already allow the consent of the majority of authors (cf. in Mexico Art. 80 Ley Federal del Derecho de Autor ) or even a single author (Argentina: Art. 19 Ley de Propiedad Intelectual ). Most laws contain regulations stating that the combination of different genres - such as word and music - results in not one but two separate works. Even in the absence of a legal regulation, however, case law and legal doctrine almost consistently follow this solution.

Commissioned work

The different treatment of commissioned work paradigmatically shows the different approaches of the copyright in the strict sense of the Roman law tradition (droit d'auteur, diritto di autore) of the countries of civil law in contrast to Anglo-Saxon copyright . If the creator has produced a work in fulfillment of contractual obligations according to (rough) specifications of the client, there are two options for assigning the resulting subjective right: Either the client or the contractor. The countries of continental European tradition choose the latter solution, as exemplified by Portuguese law:

"O direito de autor pertence ao criador intelectual da obra, salvo disposição expressa em contrário."

"The copyright belongs to the intellectual creator of the work, unless something else is expressly agreed in the contract."

- Código do Direito de Autor e dos Direitos Conexos : Art. 11

The legal systems of common law choose the former option for copyright :

"Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary."

- Copyright, Designs and Patents Act 1988, p. 11 (2)

Type and scope of copyright

Copyright is a time-limited monopoly right in favor of the creator of a work.

Formal requirements for copyright protection

Under the influence of the revised Bern Convention of 1908, the vast majority of legal systems grants copyright protection regardless of formal requirements. An important exception was the law of the United States until 1989 : According to Section 401 (a) Copyright Act 1976, all reproductions of the work had to bear the mark © (C in a circle). This still applies to works that were first published before January 1, 1978. Another formality exists under US law in that, according to Sections 408–412 Copyright Act 1976, two copies or phonograms of the work must be deposited in the Library of Congress's Copyright Office . Failure to comply, however, threatens at most a fine - the copyright protection remains unaffected. The registration of the work can be applied for when it is deposited, whereby certain procedural advantages can be obtained. A similar regulation also exists in Argentina (cf. Art. 57–63 Ley de Propiedad Intelectual).

That droit moral

The right of publication

As part of moral law, German law recognizes, in addition to the rights of exploitation, an independent right of publication in Section 12 UrhG; the standard is even referred to there as the “basic standard of copyright protection”. Regardless of this position in German law, a comparable norm is alien to the majority of legal systems: In the Scandinavian countries, the introduction of such a norm was deliberately waived in the 1960s, even the laws of Austria and Switzerland lack a comparable norm. The practical difference is nevertheless extremely small: Since almost all functions of the publication right can also be covered by the exploitation rights, its necessity was discussed intensively and questioned even in Germany. Another important legal system in France is a droit de divulgation ( Art. L121-2 CPI), which is subject to a separate, intimate succession.

For the exploitation rights, see also the right of use in the Copyright Act ( §§ 31 ff UrhG ).

The droit au respect

The protection of the author against the presentation of his work in a form that is damaging to his reputation and contradicting his artistic convictions is discussed under the French term droit au respect (French: 'right to respect and respect'). The great majority of copyright laws agree that the author has such a right; There are, however, significant differences in terms of range and scales. The Bern Agreement has been stipulating since 1928 [resp. 1948] in Art. 6 bis the right of the author, "regardless of his property rights and even after their assignment, [...] to oppose any distortion, mutilation or other alteration of the work [or any other impairment of the work] Honor or his reputation could be detrimental ”(Fr .:“ Indépendamment des droits patrimoniaux d'auteur, et même après la cession desdits droits, l'auteur conserve le droit […] de s'opposer à toute déformation, mutilation or autre modification de cette œuvre [ou à toute autre atteinte à la même œuvre], préjudiciables à son honneur ou à sa réputation ”).

The droit à la paternité

The French term droit à la paternité (French: ~ 'right to recognition of authorship') can be understood in a narrower and a broader sense: In the real sense, it includes the author's right to have his name or pseudonym in connection is presented with the work when the work is made public. The Bern Agreement has been stipulating since 1928 [resp. 1948] in Art. 6 bis the right of the author “to claim the authorship of the work for himself, regardless of his property rights and even after their assignment” (fr .: “ Indépendamment des droits patrimoniaux d'auteur, et même après la cession desdits droits, l'auteur conserve le droit de revendiquer la paternité de l'œuvre ”).

In a broader sense, it also includes the negative side of droit à la paternité in the narrower sense: the author can take action against any incorrect attribution of the work, even if the work is not made available to the public. In a broader sense, it is not to be assigned to the actual copyright, but - depending on the legal system - to the rules of personal rights , the law of defamation or contract law .

Limitations of Copyright

The social connection of copyright as intellectual property justifies certain legal barriers that constitute an exception to the prohibition of unauthorized reproduction and distribution. In addition to the right to quote, these exceptions also include freedom from catalog images or the use of orphan works .

Right to quote

It has been recognized since the existence of copyright norms that in the context of the artistic and scientific treatment of works protected by copyright, limits are set by the right of quotation. In the German Copyright Act of 1965, the admissibility of quotations was initially finally allowed in three cases, which were the result of a long scientific discussion, but were soon interpreted in an expanded manner by case law. Anglo-Saxon and Scandinavian legal systems, on the other hand, knew a flexible general clause early on: in common law, the right to quote from case law to the doctrine of fair dealing (or fair use ) is dominated. The German legislature took this into account in 2008 and designed § 51 UrhG as a general clause with examples of rules ; This means that the restriction to language works in Section 51 No. 2 UrhG old version is no longer applicable . The standard examples of German law also differentiate between large and small quotations . The restrictive feature is still the purpose of the quotation: Only "if the use is justified in its scope by the special purpose" may be quoted.

According to the wording of the law, French law makes a distinction in Art. L122-5 Paragraph 1 No. 3 lit. a CPI between analysis and courte citation , which, however, do not correspond to the German division into large and small quotations or are separated from one another with a similar dogmatic clarity as in German law. Here, too, the “caractère critique, polémique, pédagogique, scientifique ou d'information” , ie. H. turned off the purpose of the quote. On the other hand, Italian law brings another aspect: According to Art. 70 (1) UrhG-I , the quotation must also be justified insofar as the protected work should not compete economically with the quotation.

Transfer of Copyright

Transfer in the event of death

In most legal systems, copyright is subject to inheritance rules in the absence of a will . The succession can usually also be determined in the will according to the rules of general inheritance law . In some legal systems of the German legal circle (cf. § 28 , § 29 UrhG-D and § 23 UrhG-A) the transfer mortis causa ("in the event of death") is also the only way to transfer the copyright.

Transfer by means of a publishing contract

The Publishing Law deals with how usage rights can be transferred to a publisher, to allow publication.

Copyright Infringement

Copyright infringements are not regulated separately in many legal systems, but are subject to the rules of general law , i.e. regularly civil procedure law , tort law and criminal law . In terms of civil procedure law, temporary legal protection is particularly important in order to avert irreparable damage through quick action. A famous example of a special rule is the saisie-contrefaçon (French: saisie 'security', contrefaçon 'imitation') of French copyright law, which makes it possible for the responsible judge or commisaire de police to confiscate copies made in breach of copyright law . The property of the respective defendant can be searched without a prior hearing.

Duration of protection

In the standard case - i.e. a single author who publishes his own work during his lifetime - the revised Berne Convention specifies a minimum duration of 50 years after the death of the creator ( post mortem auctoris ). The member states can introduce longer protection periods. Numerous states have increased the term of protection to 70 years, including 1965 Germany ( Section 64 UrhG-D), 1972 Austria ( Section 60 UrhG-AT), 1985 France ( Art. L123-1 Code de la propriété intellectuelle ) and 2014 Italy; significantly longer protection periods exist with 80 years in Guinea (Art. 42 Law No. 043 / APN / CP of August 9, 1980), 99 years in the Ivory Coast (Art. 45 Law No. 96-564 of July 25, 1996) and 100 years in Mexico (Art. 29 Ley Federal del derecho de autor ).

The term of protection for works by anonymous authors is specified in Section 66 UrhG-D, representative of numerous other legal systems (e.g. France, Sweden, Brazil) as follows: If the author's identity is unknown, the term of protection otherwise determined post mortem does not apply from death, but from publication. US law chooses a different solution in 17 USC § 302 c): According to this, either 95 years after the first publication or 120 years after the creation of the work apply - whichever is longer.

International Copyright

Cross-border scenarios play a particularly important role in the area of ​​copyright law. As in other cases with foreign contacts, a distinction must be made between three questions: First, the question of international jurisdiction , i.e. which state courts decide on the case, must be clarified; the applicable conflict of laws is based on this . The conflict of laws in turn provides information about which substantive law is to be applied. Finally, in the area of ​​copyright, third-party law aspects of the respective national law must often be observed. The question of the applicable law - international copyright law as a branch of private international law (or better, conflict of laws ) - is at the center of the academic discourse.

See also

literature

Collections of laws

  • UNESCO (ed.): Copyright laws and treaties of the world . Unesco, Paris 1956 (loose-leaf collection; also Spanish / French : Repertorio universal de legislación y convenios sobre derecho de autor / Lois et traités sur le droit d'auteur ).

Comprehensive presentations

Individual aspects

  • 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 . CH Beck, Munich 2001, ISBN 3-406-47216-8 .
  • Alain Strowel: Droit d'auteur et copyright: Divergences et convergences. Étude de droit comparé . Montchrestien, Paris 2000, ISBN 978-2-275-00484-6 .

That droit moral

  • Adolf Dietz: The USA and the “droit moral”: idiosyncrasy or rapprochement? Comments on a problematic relationship on the occasion of the accession of the United States to the Bern Convention . In: GRUR Int . 1989, p. 627-634 .
  • Gerald Dworkin : The Moral Right and English Copyright Law . In: IIC . 1981, p. 476-492 .
  • Miriam Kellerhals: The European Roots of Droit Moral . In: GRUR Int . 2001, p. 438-446 .
  • Agnès Lucas-Schloetter: The legal nature of the Droit Moral . In: GRUR Int . 2002, p. 809-815 .
  • CP Rigamonti: The conceptual transformation of moral rights . In: American Journal of Comparative Law . tape 55 , no. 1 , 2007, p. 67-122 .

Conflict of laws

Legitimation and Philosophy of Copyright

Economic analysis of copyright law

  • SM broom: Intellectual property . In: The New Palgrave Dictionary of Economics and the Law . tape II . Macmillan, London 1998, pp. 348-352 .
  • Michele Boldrin, David K. Levine: intellectual property . In: Steven N. Durlauf, Lawrence E. Blume (Eds.): The New Palgrave Dictionary of Economics . Palgrave Macmillan, 2008, doi : 10.1057 / 9780230226203.0816 .
  • David D. Friedman : Clouds and Barbed Wire: The Economics of Intellectual Property . In: Laws Order . Princeton University Press, Princeton / Oxford 2000, ISBN 978-0-691-09009-2 , pp. 128-144 .
  • E. Ian and M. Waldman: The effects of increased copyright protection: an analytic approach. In: Journal of Political Economy . tape 92 , 1984, pp. 236-246 .
  • William M. Landes, Richard Posner : An Economic Analysis of Copyright Law . In: Donald A. Wittman (Ed.): Economic analysis of the law . Blackwell Publishers, Oxford 2003, ISBN 978-0-631-23157-8 , pp. 83-95 .
  • Mariateresa Maggiolino: Intellectual Property and Antitrust: A Comparative Economic Analysis of US and EU Law . Edward Elgar Publishing, London 2011, ISBN 978-1-84844-340-2 .
  • A. Plant: The economic aspect of copyright in books . In: Economica . tape 1 , 1934, p. 167-195 .
  • S. Vaidhyanathan: Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity . New York University Press, New York 2003.

History of Copyright

  • Monika Dommann : Authors and Apparatus. The history of copyright in the changing media . Fischer Verlag, Frankfurt am Main 2014
  • Lisa Sommer: The history of the concept of work in German copyright law . Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155507-7 .
  • Petya Totcharova: The ABC of Copyright . UNESCO 2010 ( online ).
  • Elmar Wadle : Contributions to the history of copyright law. Stages on a long road (Writings on Civil Law Volume 425) . Duncker & Humblot, Berlin 2012, ISBN 978-3-428-13647-6 .

Web links

Wikisource: Copyright  - Sources and Full Texts
Wiktionary: Copyright  - explanations of meanings, word origins, synonyms, translations
Wikiquote: Copyright  - Quotes

Individual evidence

  1. ^ Haimo Schack : Copyright and Copyright Contract Law . Mohr Siebeck Verlag , Tübingen 2009, Rn. 2.
  2. ^ Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tübingen 2007, 3-5-3-10.
  3. ↑ a b Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tübingen 2007, 3-10-3-11.
  4. ↑ [emphasis not in the original]
  5. ^ Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tübingen 2007, 3-14-3-15.
  6. ^ Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tübingen 2007, 3-38.
  7. ↑ a b c Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tübingen 2007, 3-49-3-52.
  8. ↑ a b Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tübingen 2007, 3-53.
  9. ^ Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tübingen 2007, 3-71.
  10. ^ So Adolf Dietz / Alexander Peukert : § 16 The individual moral rights, Rn. 1 . In: Ulrich Loewenheim (Ed.): Handbook of Copyright . 2nd Edition. CH Beck, Munich 2010.
  11. ↑ Stig Strömholm : The author's right to publish in a comparative law perspective . Almquist och Wiksell, Stockholm 1964, p. passim .
  12. ^ Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tübingen 2007, 3-88.
  13. ↑ a b Bern Convention for the Protection of Works of Literature and Art, Article 6bis in the systematic collection of Swiss international law, original French text Convention 1928 , Convention 1948 , German translation Convention 1928 , Convention 1948 .
  14. ^ Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tübingen 2007, 3-96-3-97.
  15. ↑ BGH, judgment of November 12, 1992 - I ZR 194/90
  16. ↑ See Thomas Dreier: § 51 UrhG . In: Thomas Dreier , Gernot Schulze (Hrsg.): Copyright Law . 3. Edition. CH Beck, Munich 2008, Rn. 1-2.
  17. ^ For example BGH GRUR 1987, 362 - film quote.
  18. ↑ a b Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tübingen 2007, 3-128-3-130.
  19. ^ Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tübingen 2007, 3-148.
  20. ^ Revised Berne Convention: Article 7 (as amended on September 28, 1979
  21. ^ Decreto legislativo del 21 February 2014, n.18 .
  22. ↑ a b Stig Strömholm : Copyright Comparison of Laws . In: Eugen Ulmer and Gerhard Schricker (eds.): International Encyclopedia of Comparative Law . Volume XIV: Copyright. Mohr Siebeck, Tuebingen 2007, 3-174-3-182.