publication

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Publication (also: appearance or indentation ) refers to the process in German copyright law in which a work is made available to the public with the consent of the author ( Section 6 (1) UrhG ). To do this, the work must be placed on the market.

Publication and publication are sometimes used synonymously. In media studies , on the other hand, a publication is usually understood to be a print medium ; its manufacturer is the publicist .

General

A work within the meaning of § 1 and § 2 of the Copyright Act (UrhG) are personal intellectual creations in the fields of literature, science and art. In a non-exhaustive list , Section 2 (1) UrhG mentions as "protected works":

As long as the authors have these works protected by copyright (for example by registering a music title with GEMA ) but not publish them, the legally offered copyright protection cannot be fully implemented. In Section 12 (1) of the Copyright Act, the author is given the option of whether and how he wants to publish his work. Only the author is allowed to copy, distribute or exhibit his work ( § 15 Abs. 1 UrhG). Public reproduction is also reserved to him, in particular the right of presentation, performance and demonstration, making available to the public, broadcasting rights, reproduction by means of image or sound carriers or radio broadcasts (Section 15 (2) UrhG). Copyright uses the expression right of distribution, to offer the original of the work to the public or to bring it into circulation ( Section 17 (1) UrhG) or to make it publicly available ( Section 19a ). The publication only enables the economic exploitation of a work (even an unfinished one).

Legal issues

In principle, a trademark right arises with the publication of the work. A work is published when it has been made available to the general public. The legal concept of publication in Section 6 (1) UrhG requires that the work be made available to the public . The term “appearance” is legally defined in Section 6 (2) UrhG . For this purpose, copies must be offered to the public. An offer to the public is present when the offerer leaves the private sphere and steps out of the internal sphere into the public. The work leaves the sole control of its author and is handed over to the public.

A reproduction is public according to § 15 Abs. 3 UrhG if it is intended for a majority of members of the public. A majority of people is already present with two people. In practice, publication is in particular the sale of books or sound carriers , their rental / lending, their public performance on radio and television or their download on the Internet by means of Music-on-Demand or Kindle Direct Publishing . Then an exclusive right arises for both the work and its title. There is a genetic accessoryity between the work and its title ( book title , music title , film title ) , both of which are initially inextricably linked. Accordingly, there could only be a likelihood of confusion between two works if they are published on the market under their title. However, both jurisprudence and prevailing opinion are of the opinion that the object of protection of Section 5 (1) and (3), Section 15 of the Trademark Act is the title and not the work. Since 1997, case law has required that the announcement of an as yet unpublished work must immediately precede its publication.

Any publication requires the prior consent of the author ( § 8 UrhG). If the author has concluded an exploitation contract with a publisher that requires publication, this usually implies tacit approval for publication. The handover of mere demo recordings does not yet constitute approval for use. Registration with GEMA also does not involve consent to the initial publication. The author himself can grant the right of first exploitation . Second and third exploitation rights, however, are exercised by collecting societies .

Release date

The publication date is set and announced by the authors themselves, the publishers or other exhibitors of the information carrier. The publication date is important for biographies , discographies or other sources . In contrast to the appearance, the incorporeal communication (music performance, radio broadcast, picture exhibition or film premiere) is sufficient for publication. A physical copy (sound carrier, books), on the other hand, must be given to the public, i.e. published.

Legal consequences of a publication

In the USA, the publication date also has copyright consequences, as some legal consequences are linked to this. If the right to publish a work has been transferred, the publication date can also be decisive for the expiry of the deadline for the right of recall (Section 203 lit. c) CA). According to § 302 lit. c) CA the term of protection is either 95 years after the publication date or 120 years after the inclusion date, whichever ends first.

Woody Guthrie's patriotic This Land Is Your Land was recorded in April 1944, but was not initially released as a record. Instead, the publication of the music booklet on April 3, 1945 was the publication date. According to the copyright at the time, the song became public domain after 28 years, i.e. in 1973, if its copyright had not been extended until that year. Since an extension was only applied for in 1984, it has actually been in the public domain since 1973 .

Public registers

Publication plays a decisive role in entries in public registers ( commercial register , cooperative register , association register ). The respective registration court is responsible for the publication obligation . Under commercial law, publication is understood to mean the obligation to announce the entries in the commercial register ( Section 10 HGB ). Not only the entry in the register - which can be viewed by anyone ( Section 9 (1) HGB) - is therefore necessary, but also the notification in the electronic information and communication system determined by the regional justice administration. In § 32 HRVO , the publication of the entry must take place immediately , since the effectiveness of the entries towards third parties in good faith is linked to the time of publication. The entry of a trademark in the trademark register is published ( § 41 sentence 2 MarkenG) and is decisive for the beginning of the objection period of 3 months following the date of entry ( § 42 MarkenG). Publication of a patent specification in the patent gazette results in the legal protective effects of the patent ( Section 58 (1) PatentG). In Germany, the effects of the publication of the grant of a patent do not depend on the publication of the patent specification. The patent effects therefore also occur if no patent specification appears or the publication of the patent specification was unsatisfactory.

Web links / literature

Individual evidence

  1. ↑ indentation. In: Duden . Retrieved March 17, 2014 : "To publish (a text or an advertisement) in the newspaper"
  2. ↑ Michael O. Krieg: No more was published. A list of unfinished printed works. On the basis of the former Hofrat Dr. Moriz Grolig, library director of Vienna, edited and supplemented the collected material. 2 volumes. Walter Krieg Verlag, Bad Bocklet / Vienna / Zurich / Florence 1954–1958.
  3. ↑ Marcel Schulze, materials on the UrhG , 1997, p. 433
  4. ↑ BGH NJW 1991, 1234
  5. ↑ BGH WRP 1997, 1181, 1183
  6. ↑ Hans-Jürgen Homann, Praxishandbuch Musikrecht , 2007, p. 38
  7. ↑ Simon Apel, The performing musician in the law of Germany and the USA , 2011, p. 323
  8. ↑ Peter Irvine / Kohel Haver, This Land Belongs to All of Us , 2004, p. 2 ff. ( Memento of the original dated November 12, 2013 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. (PDF; 77 kB) @1@ 2Template: Webachiv / IABot / www.peterirvinelaw.com
  9. ↑ Robin Melchior / Sandra Schneider / Christian Schulte, Commentary on the Commercial Register Ordinance , 2009, p. 220 f.
  10. ↑ Rudolf Busse (original) / Alfred Keukenschrijver (ed.), Patent Act: Taking into account the European Patent Convention , 8th edition 2016, § 58 PatG marginal no. 23