The exploitation rights also include the right to publicly reproduce the work in an immaterial form ( perform or broadcast ( II 2 No. 1 UrhG). The author can exercise his right of first exploitation himself through public performance. The exploitation rights are enumerated in I, II UrhG (not exhaustive) and regulated in UrhG.II 1 UrhG). This includes the right to speak,
The right of exploitation is an absolute right . Thus, the author can allow or forbid others to use it against or without compensation. The legislator differentiates between physical (enumerated in I UrhG) and intangible form (enumerated in II UrhG) as well as between first, second and third-party exploitation rights.
Exploitation rights in physical form
The exploitation rights in physical form include the right of reproduction, the right of distribution and the right to exhibit . All together are granted to the author in I UrhG. However, this list of physical exploitation rights is not exhaustive. These three exploitation rights are then defined in . From these it follows that it is characteristic of a utilization of physical form that the work is physically fixed and is made available to the public in this form.
The right of reproduction is defined in I UrhG: It is the right to reproduce a protected work. It is irrelevant whether these exist temporarily or permanently, in what number or in what process they were made. Duplication is, for example, book reprinting, photocopy, or tape recording. In principle, the term reproduction includes "[...] any physical definition of a work [...] that is suitable to make the work directly or indirectly perceptible to the human senses in any way [...]." Thus, reproductions do not only include the original one-to-one identical replicas, but also "work modifications [...] that [...] are [...] still within the protection area of the original, because its uniqueness is retained in the replica and there is a consistent overall impression [...]."
Duplications are legitimized by a variety of restrictions , e.g. B. the temporary technically required copy, quotations, or the copy for private use.
According to Placing on the market is the transfer of ownership (physical) of the workpiece to people who do not belong to the manufacturer's circle of friends. The term public is defined in III UrhG. According to this, dissemination is public if it is primarily aimed at people with whom the manufacturer has no personal relationship and who do not share personal ties with one another.I UrhG, the right of distribution is the right to offer the original or copies to the public or to bring them into circulation (also public). Offering means exhibiting workpieces for sale.
In exhaustion principle for the distribution right is codified. Thereafter, the right of distribution for a specific work copy is exhausted as soon as it has been sold by the person entitled. Subsequent resale or even destruction do not require the manufacturer's consent. He can then no longer invoke the distribution right. This exhaustion principle applies as a consequence of the free movement of goods throughout Europe . However, there is no equivalent international agreement. After the BGH determined in 1986, in accordance with the legal situation at the time, that the exhaustion occurred without restriction, i.e. further letting was legal, the legislature decided to exclude letting from exhaustion. Use case is e.g. B. the video library , which must therefore be granted a rental right by the right holder.II UrhG the
Together with the right of reproduction, the right of distribution forms the classic publishing right , which the author grants the publisher.
only affects physical distribution. In the case of the Internet or other immaterial forms, UrhG is applied.
Exploitation rights in immaterial form
The utilization in non-physical form includes in particular, i. H. Also this list according to § 15 Abs. 2 UrhG is not exhaustive, the right of presentation, performance and demonstration, the right to make available to the public, the right to broadcast, the right to reproduce by image or sound carriers and the right to reproduce radio broadcasts and from making available to the public. Intangible exploitation is a matter of different types of communication to the public. A reproduction is then public if it according to Section 15 (3) UrhG is intended for a majority of members of the public. Exploitation in purely private circles is therefore not included.
If the author has approved the recording of his work on video or audio carriers, neither he nor the audio carrier manufacturer can prohibit the broadcast; In this case of secondary use, however, he is entitled to appropriate remuneration ((2), and UrhG).
First, second and third party exploitation rights
Second and third-party exploitation rights are subordinate to the first exploitation right. They are perceived by collecting societies . For this purpose, they are entitled to remuneration by virtue of the law (Section 78 (2) UrhG). In the case of sound carriers (formerly records , now CDs or DVDs ) or image carriers , the initial production of a sound carrier is an initial exploitation (Section 15 (1) No. 1 UrhG); a second exploitation occurs, for example, with compilation CDs ( summer hits , Bravo hits ). Secondary utilization is also the broadcast of a sound carrier on the radio, third-party utilization is the playback of the radio broadcast in a restaurant. In both cases - in the case of public performance - fees are payable to the collecting society.
Radio and television
In the case of sporting events in particular, radio and television appear because of the public interest of sporting organizers in order to exercise broadcasting rights. The sports organizers are rights holders and therefore licensors. No collecting societies are involved here, instead the negotiations on license payments take place directly between the rights holder and the radio and television companies.
The rights holder can choose whether to grant exclusive rights, first, second and third-party exploitation rights or informational reporting rights. With exclusive rights, there is only one licensee who can only broadcast the event, others are completely excluded. From initial exploitation is on radio and television talk when a radio or television station gets granted the right by an organizer to broadcast copyrighted sports performances to be paid exclusively. The first exploitation right guarantees the licensing broadcaster to report exclusively live or time-shifted from a specific sporting event. This means that all other television stations are only allowed to report on these performances as part of news programs .
For example, the ARD Sportschau owns the first exploitation rights to the First Bundesliga , the ZDF has secured the - delayed - second exploitation rights, while the DSF has the first exploitation rights for Sunday games. Subllicensing is possible, whereby the owner of the first exploitation rights can grant the broadcasting rights to another television broadcaster for a fee. For example, Sky Deutschland is said to have paid the organizer a total of € 700,000 for the first exploitation rights for the women's tennis elimination games at Wimbledon in 2013, but only demanded € 1.5 million from ARD for the sub-license for the finals. ARD has ended negotiations with Sky due to price reasons.
Other television stations are then only allowed to report on this free of charge as part of the short reporting of 90 seconds. The case before the ECJ was about Sky Austria , which owned the first exploitation rights for the Europa League and was obliged by the Austrian regulatory authority KommAustria to grant ORF Eins the free right to short reporting in accordance with the Austrian directive on audiovisual media services. The ECJ was of the opinion that the encroachment on Sky Austria's property rights was justified because it served the fundamental right to freedom of information. The BVerfG had already approved the short reporting in 1998, but still considered it to be chargeable.
Restrictions on exploitation rights
- compare "The author has the exclusive right [...]" ( I UrhG) or "The author also has the exclusive right [...]" ( II 1 UrhG)
- compare signal word "in particular" in "the right includes in particular" ( I UrhG)
- Ulrich Loewenheim: Handbuch des UrhR. 2003, § 19 marginal no. 4th
- Ulrich Loewenheim: Handbuch des UrhR. 2003, § 19 marginal no. 5; Fromm / Nordemann. UrhG § 15 no. 2
- BGH, judgment of October 4, 1990 - I ZR 139/89 -, BGHZ 112, 264-278
- BGH, judgment of May 16, 2013 - I ZR 28/12 - "Beuys-Aktion"
- BGH, judgment of March 6, 1986 - I ZR 208/83 - "Record rental"
- Third amendment of the UrhG ( Memento of the original from January 18, 2015 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.
- compare the wording of II UrhG: "[...] their further distribution is permitted with the exception of rental."
- Ulrich Loewenheim: Handbuch des UrhR. 2003, § 19 marginal no. 5.
- Michel Clement, Oliver Schusser, Dominik Papies: Economics of the music industry. 2008, p. 67.
- Florian DeBortoli: Merchandising and Licensing European and success factors League systems. 2009, p. 34.
- Television rights: ARD negotiations on Wimbledon final failed. In: Der Spiegel online. 5th July 2013.
- ECJ, judgment of January 22, 2013, Az .: C-283/11
- Audiovisual Media Services Directive
- BVerfGE 97, 228 ( Memento of the original from September 21, 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.