Related property rights

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As a related rights (also: neighboring rights or performance rights ) is referred to in the law and there, especially in the intellectual certain rights that a close relationship or similarity to the copyrights have. The exact definition varies depending on the legal system under consideration; In German copyright law, the term functions as a generic term for a number of individual rights that, unlike the property right for works under Section 2 (2) UrhG, are not linked to the fulfillment of a personal intellectual creation, but instead - in the words of the official justification on the draft of the Copyright Act - aim at "services of a different kind" which are "similar to the creative work of the author or are provided in connection with the works of the author".

Germany

Overview

In the German Copyright Act (Law on Copyright and Related Property Rights) , the regulations on related property rights can be found predominantly in a specially provided section entitled “Related Property Rights”, which includes Sections 70 to 87h UrhG . Only the protection of the film manufacturer as well as the motion picture protection are regulated as film-specific standards in deviation from this in § 94 and § 95 UrhG . In detail, the German copyright law knows the following related rights (status: 2018):

Legal norm designation Owner of the property right Duration of protection
(years)		 Connection point
Section 70 UrhG Scientific expenditure protection Author of editions of works or texts not protected by copyright 25th Publication of the edition [if not published within 25 years: from production] (§ 70 Abs. 3 UrhG)
Section 71 UrhG Protection of bequeathed works, also " editio princeps " The person who legally allows a work that has not been published to appear for the first time after the copyright has expired or who reproduces it publicly for the first time 25th Appearance of the work [if first public communication within 25 years: from this date] (§ 71 Paragraph 3 UrhG)
Section 72 UrhG Protection of photographs The one who creates photographs and products that are produced in a similar way to photographs 50 Appearance of the photograph [if first permitted public reproduction within 50 years: from this date; if within 50 years neither published nor permitted publicly reproduced: from the date of production] (§ 72 Abs. 3 UrhG)
§§ 73 ff. UrhG Protection of the performing artist Anyone who performs, sings, plays or otherwise performs a work or expression of folk art, or who participates artistically in such a performance 70 (50) (Property rights from §§ 77, 78 :) Appearance of the sound carrier on which the performance was recorded [if first permitted use for public reproduction within 70 years: from this date; if not recorded: from the appearance of the recording (50 years) or if the first permitted use for public reproduction within 50 years: from this (50 years)] ( § 82 para. 2 UrhG )
Section 81 UrhG Protection of the organizer Owner of a business that hosts the performer's performance 25th Appearance of a recording of the performance of a performing artist [if first permitted use for public reproduction within 50 years: from this point onwards; if within 50 years neither appeared nor legally used for public reproduction: from performance] ( § 82 Abs. 2 UrhG )
Section 85 UrhG Protection of the phonogram manufacturer Manufacturer of a phonogram 70 (50) Appearance of the phonogram [if not appearing within 50 years, but first permitted public reproduction within 50 years: from this date on; if neither appear nor legally publicly reproduced within 50 years: from production (50 years)] (§ 85 Abs. 3 UrhG)
Section 87 UrhG Broadcasting Company Protection Broadcasting company 50 First radio broadcast (Section 87 (3) UrhG)
§§ 87a ff. UrhG Protection of the database manufacturer The one who has made a substantial investment in creating a database 15th Publication of the database [if not published within 15 years: from production] ( § 87d UrhG )
§ 87f ff. UrhG Protection of the press publisher Manufacturer of a press product 1 Publication of the press product ( Section 87g (2 ) UrhG )
Section 94 UrhG Protection of the film maker The one who takes on the economic responsibility and organizational work required to make a film 50 Appearance of the image or image and sound carrier [if first permitted use for public reproduction within 50 years: from this point onwards; if within 50 years neither published nor legally used for public reproduction: from production] (§ 94 Abs. 3 UrhG)
Section 95 UrhG Protection of motion pictures Manufacturers of sequences of images and sequences of images and sounds that are not protected as cinematographic works 50

Sections 70 to 87 UrhG and Sections 94, 95 UrhG were already included in the original version of the Copyright Act of September 9, 1965. The protection of the database manufacturer (§§ 87a ff. UrhG) in turn goes back to Article 7 of Directive 96/9 / EC of the European Parliament and of the Council of March 11, 1996 on the legal protection of databases and took place on January 1, 1998 Entry into the Copyright Act. The ancillary copyright for press publishers (§ 87f UrhG) came into force as the most recent related property right on August 1, 2013.

Individual related property rights were, however, already legally anchored (in a different form) before the copyright law came into force, such as the property right provided as a fictitious editor's copyright in Section 2 (2) LUG ( law on copyright in works of literature and music ) from 1910 for performing artists whose “performance” is transferred to “devices for instruments” which are used for mechanical reproduction for the ear. A photo protection was de facto already to be found in the law on the protection of photographs against unauthorized reproduction of January 10, 1876, which granted photographers a five-year protection for them regardless of the creative content of their works.

Purpose, protection requirements and relationship to copyright

Although the intentions of the related property rights differ from one another, superordinate groups of protective purposes can be formed. Dreier suggests a two-way structure of the protection intention on the basis of the existing norms: Either the legislature is concerned with the protection of “certain personal achievements” (as in the case of the protection of the performing artist) or, as is predominantly the case, protection of the “ economic, organizational and technical performance ”(as with the protection of the sound carrier manufacturer) intended. In contrast, the purpose of the first part of the Copyright Act (copyright in the narrow sense) is to protect the author. What is accessible to copyright protection is in turn judged on the existence or non-existence of the work property according to § 2 Abs. 2 UrhG. Only that which is a personal creation of the author can trigger copyright protection; In addition, this creation must have a spiritual content , it must also have a perceptible design and finally also express the individuality of the creator.

Although the related property rights lack a central protection standard such as § 2 UrhG, the difference to the requirements of plant security can be outlined in general. This takes place initially at the level that triggers protection: In copyright law, this is the work , i.e. the result of a self-creative process, not the method of creation or the technique of representation. The related property rights, on the other hand, are linked to the process of service provision in accordance with their intended purpose . For example, the protection of the press publisher under Section 87f UrhG is not based on the form of the result, rather the effort required to provide the service should be rewarded with a property right. The creative quality of the result as well as its individuality are irrelevant in this context.

The difference between copyright and ancillary copyright law also continues at the level of the recipient of protection. Alignment to the person of the author imposes that the copyright can only ever belong to a natural person. Corresponding to their focus on the service, related property rights are also regularly directed to legal entities, as an economic contribution to the provision of services is regularly made by companies. This becomes particularly clear from the wording of the law in the protection of the organizer (§ 81 UrhG) or the broadcasting company (§ 87 UrhG), which are (also) directed at companies.

By their very nature, the related property rights do not represent “minor copyrights” as catchment areas for products that do not meet the requirements of plant protection. This does not rule out that the result can coincide with it in individual cases. Specifically, reference can be made to the photo protection of § 72 UrhG, which, apart from the slightly shorter term of protection and the different connection time for photographs and similar products, grants almost the same protection content as the protection of photography as a work of the fine arts according to § 2 Paragraph 2 UrhG . Whether simple photo protection and plant protection can exist at the same time (because every copyrighted photograph also meets the weaker requirements of photo protection) is overwhelmingly denied in the literature and can almost always be ignored in practice.

The large number of ancillary copyrights in German law is sometimes criticized.

Protection content and duration

The protective content of the individual ancillary copyrights differs considerably in some cases. The protection of photos according to § 72 UrhG was already mentioned in the preceding paragraph as an example of a property right, the protection content of which hardly lags behind that of plant security, as the wording of the provision ("[...] are in the corresponding application of the provisions of the Part 1 protected ”, Section 72 (1)) suggests. The photographer also enjoys a right to recognition of his authorship and other moral rights. There are restrictions due to a lack of individuality and a resulting lack of an "intellectual and personal relationship [] to the work" ( § 11 UrhG ), sometimes in the area of ​​the prohibition of distortion ( § 14 UrhG ), which the photographer only partially and sometimes to a limited extent is due. Scientific editions (Section 70 UrhG) are also protected in a similarly comprehensive manner as with plant security. The situation is different with the scope of protection of posthumous works (Section 71 (1) UrhG) and their owner, who can claim all property rights, but no moral rights. Sections 85, 86 UrhG name a final catalog of rights for the sound carrier manufacturer, which excludes claims under copyright law and also limits property rights. The same applies to the protection of the broadcasting company.

The term of protection of the related property rights is usually less than 70 years (see the table above for details), but has tended to increase over the course of the development of the Copyright Act. In detail was

  • the protection of scientific expenditure was extended from 10 to 25 years in 1990;
  • the copyright reform of 1990 extended the protection of posthumous works from 10 to 25 years;
  • the protection of photographs was extended in 1985 from up to 25 years for so-called "documents of contemporary history" to 50 years, before the protection of all photographs was uniformly set at 50 years in 1995;
  • the property-related part of the protection of the performing artist (§§ 77, 78 UrhG) with the introduction of the Copyright Act 1965 was effectively reduced to 25 years after publication or production, increased to 50 years with effect from July 1, 1990 and through the implementation of the directive 2011/77 / EU increased to 70 years in 2013;
  • the protection of the sound carrier manufacturer (§ 85 UrhG) was extended from 25 to 50 years in 1995 in order to be extended to 70 years through the implementation of Directive 2011/77 / EU ;
  • the protection of the broadcasting company (Section 87 UrhG) was extended from 25 to 50 years in 1995;
  • the protection of the film producer (§ 94 UrhG) and thus also the protection of motion pictures (§ 95 UrhG) increased from 25 to 50 years in 1995.

Switzerland

In Switzerland, the related property rights are also regulated together with the copyrights in the narrower sense in the Federal Act on Copyright and Related Rights (URG). In detail, the Swiss Copyright Act recognizes the following related rights (status: 2018):

Job designation Owner of the property right Duration of protection
(years)		 Connection point
Art. 33 ff. CopA Protection of performing artists Anyone who performs a work or an expression of folk art or participates artistically in such a performance 50
[uniformly regulated]		 Presentation of the work or expression of folk art
Art. 36 CopA Protection of manufacturers of audio and video carriers Manufacturer of audio and audio-visual carriers Publication of the audio or audio-visual carrier [if not published within 50 years: from the date of manufacture]
Art. 37 f. URG Protection of broadcasting companies The one who provides the technical, organizational or economic company service that enables the actual transmission process Broadcasting the program

Art. 38 URG refers to ancillary copyrights regarding transfer of rights, compulsory enforcement and the limits of protection to the corresponding regulations on copyright. The relationship between neighboring rights and copyright is not clearly regulated in the Copyright Act.

Austria

In Austria, the related rights are regulated in the federal law on copyright in works of literature and art and on related rights .

Legal norm designation Owner of the property right Duration of protection
(years)		 Connection point
§§ 66 ff. UrhG Protection of the performing artist Anyone who recites a work, performs it, performs it in any other way, or participates artistically in such a performance 50/70 (Exploitation rights from § 68 :) Appearance or first public reproduction of a recording of the performance, depending on which event occurs earlier (50 years) [if it appeared on sound carriers and / or publicly reproduced within 50 years of the performance: from the date of publication or the first public reproduction of the sound carrier, whichever occurs earlier (70 years); if the performance is unpublished or the recording has not been published within 50 years or if it has been legally reproduced in public: from performance (50 years)] (Section 68 (3) UrhG)
Section 72 UrhG Protection of the organizer The one on whose order and account a performance takes place 50 Performance [if a recording of the performance is published within 50 years of the performance: from the publication of the recording (50 years)] (§ 72 Paragraph 4 UrhG)
§§ 73 ff. UrhG Protection of photographs The one who takes a picture (manufacturer) 50 Recording [if published within 50 years of recording: from publication of recording] (Section 74 (6) UrhG)
Section 76 UrhG Protection of sound carriers The person who records acoustic processes for their repeatable reproduction on a sound carrier (manufacturer) [for commercially manufactured sound carriers: the owner of the company] 70 (50) Publication of the sound carrier [if not published within 50 years of recording, but legally used for public reproduction: from first time legal use for public reproduction (70 years); if neither appeared nor lawfully used for public reproduction within 50 years of recording: from recording (50 years)] (Section 76 (5) UrhG)
Section 76a UrhG Protection of broadcasts The one who broadcasts sounds or images by radio or in a similar manner 50 Broadcast (§ 76a ​​Abs. 4 UrhG)
Section 76b UrhG Protection of abandoned works The person who legally publishes an unpublished work for which the term of protection has expired 25th Publication (§ 76b sentence 2 UrhG)
§§ 76c ff. UrhG Protection of the database manufacturer The person who made the investment for the procurement, verification or presentation of the database content (manufacturer) 15th Creation of the database [if published within 15 years: from publication] (§ 76d Paragraph 4 UrhG)

Regulations in other countries

For the European Union see also: Copyright (European Union)

literature

  • Ivan Cherpillod: Ancillary copyrights in the Swiss Copyright Act . In: Archive for Copyright, Film, Radio and Theater Law (UFITA) . tape 124 , 1994, pp. 140-150 . [Switzerland]
  • Roland Graschitz: Considerations on the scope of the ancillary copyrights . In: Helmuth Tades, Karl-Heinz Danzl, Gernot Graninger (eds.): A life for legal culture: Festschrift Robert Dittrich on his 75th birthday . Manz, Vienna 2000, ISBN 3-214-06168-2 , pp. 151-161 . [Austria]
  • Reto M. Hilty: Ancillary copyrights in the Swiss Copyright Act: Presentation at the symposium on the new Swiss Copyright Act of the Swiss Association for Copyright and Media Law (SVUM) on September 9 and 10, 1993 . In: Archive for Copyright, Film, Radio and Theater Law (UFITA) . tape 124 , 1994, pp. 85-140 . [Switzerland]
  • Kurt H. Hodik: Ancillary copyrights - "excesses" of copyright? In: Robert Dittrich (Hrsg.): Festschrift 50 years of copyright law (=  Austrian series of publications on commercial legal protection, copyright and media law ). Manz, Vienna 1986, ISBN 3-214-06094-5 , pp. 141-151 . [Austria]
  • Johannes S. Oebbecke: The " subject matter " of related rights: A uniform solution for the problems of partial protection, processing and free use from the point of view of common intellectual property rights . Lang, Frankfurt am Main 2011, ISBN 978-3-631-61894-3 . [Germany]

Individual evidence

  1. ↑ On the alternative names such as Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, before §§ 70 ff. Rn. 1.
  2. ↑ Bundestag printed paper BT-Drs. 4/270 of March 23, 1962, p. 33 f.
  3. ↑ See Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, before Sections 70 ff. Rn. 13.
  4. ↑ Dreier in Dreier / Schulze, Copyright Act, 6th edition. 2018, before §§ 70 ff. Rn. 13.
  5. ↑ Unless otherwise stated, the information follows the wording of the law.
  6. ↑ The point of connection is the point in time at which the term of protection begins; its exact procedure is determined in each case taking into account § 69 UrhG . Example: If something is manufactured on July 5, 2012, the term of protection is 1 year, and the point of connection is the manufacture, then the one-year protection period begins on July 5, 2012 and, taking into account Section 69 UrhG, runs for one year from January 1 of the The following year, i.e. on December 31, 2013.
  7. ^ BGH, judgment of October 22, 1992 - I ZR 300/90 = BGHZ 120, 67, 70 - film manufacturer.
  8. ↑ BGBl. 1965 I p. 1273 .
  9. ↑ BGBl. 1997 I p. 1870 .
  10. ↑ BGBl. 2013 I p. 1161 .
  11. ↑ What is meant is that equating the execution of a performance with an adaptation of the work is purely fictional, because “the rendering performance of the performing artist does not usually represent a peculiar creation” - but that would be a constitutive feature of an adaptation in the sense of copyright law (cf. BGH , Judgment of May 31, 1960, I ZR 53/58 = BGHZ 33, 1, 3 - Orchester Grauke ). See also Meckel in Heidelberg Commentary on Copyright , 4th edition 2018, § 73 Rn. 4th
  12. ↑ See W. Nordemann / Nordemann-Schiffel in Loewenheim, Handbook of Copyright Law, 2nd edition 2010, § 4 Rn. 29
  13. ↑ See Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 72 marginal no. 2.
  14. ↑ Dreier in Dreier / Schulze, Copyright Act, 6th edition. 2018, before §§ 70 ff. Rn. 2.
  15. ↑ Bundestag printed paper BT-Drs. 4/270 of March 23, 1962, p. 37; Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 2 Rn. 2.
  16. ↑ The four forms follows the common view, cf. e.g. Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 2 Rn. 32, 38 ff., Further references on the case law.
  17. ^ A. Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, § 2 Rn. 3.
  18. ↑ See for example Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 2 Rn. 2; ders. in Loewenheim, Handbook of Copyright, 2nd edition 2010, § 4 Rn. 29
  19. ↑ See instead of all Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 2 Rn. 39.
  20. ↑ Cf. Meckel in Heidelberger Commentary on Copyright , 4th ed. 2018, § 72 Rn. 1.
  21. ↑ For an overlay: A. Nordemann in Fromm / Nordemann, Copyright , 12th ed. 2018, § 72 Rn. 12. Against: Meckel in Heidelberger Commentary on Copyright , 4th ed. 2018, § 72 Rn. 8th; Thum in Wandtke / Bullinger, Practical Commentary on Copyright , 4th edition 2014, § 72 Rn. 7; Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 72 marginal no. 28.
  22. ↑ See e.g. Hilty, Copyright , 2011, para. 349 (“a never-ending catalog of protective rights” which “suggests more of the blind mania for protection of the legislature of 1965 than an established economic need for protection”).
  23. ↑ See A. Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, § 72 Rn. 15, 17; Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 72 marginal no. 41 ff.
  24. ↑ On this, for example Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 70 marginal no. 9.
  25. ↑ On this, for example, Dreier in Dreier / Schulze, Copyright Act, 6th edition 2018, § 71 Rn. 10 f.
  26. ↑ On this, for example Schulze in Dreier / Schulze, Copyright Law, 6th edition 2018, § 85 Rn. 29 ff.
  27. ↑ Cf. von Ungern-Sternberg in Schricker / Loewenheim, Copyright , 5th edition 2017, § 87 Rn. 47.
  28. ↑ Cf. Auf der Maur in Müller / Oertli, Copyright Act , 2nd edition 2012, before Art. 33–39 Rn. 1.
  29. ↑ Unless otherwise stated, the information follows the wording of the law.
  30. ↑ The point of connection is the point in time at which the term of protection begins; its exact procedure is determined in each case taking into account Art. 39 para. 2 CopA . Example: If something is produced on July 5, 2012, the term of protection is 1 year, and the connection date is the production, then the one-year protection period begins on July 5, 2012 and runs for one year from December 31, taking into account Art. 39 CopA of the year, i.e. on December 31, 2013.
  31. ↑ In the absence of a legal definition here according to Rehbinder in Rehbinder / Viganó, URG, 3rd edition 2008, Art. 37 Rn. 2.
  32. ^ Mosimann in v. Büren / David, Swiss Intellectual Property and Competition Law , Vol. II / 1, 3rd edition 2014, Rn. 1012.
  33. ↑ Unless otherwise stated, the information follows the wording of the law.
  34. ↑ The point of connection is the point in time at which the term of protection begins; its exact process is determined in each case taking into account § 64 UrhG. Example: If something is manufactured on July 5, 2012, the term of protection is 1 year, and the point of connection is the manufacture, then the one-year protection period begins on July 5, 2012 and, taking into account § 64 UrhG, runs for one year from January 1 of the The following year, i.e. on December 31, 2013.