Right of access

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In copyright law, the right of access is the right of an author to be able to demand that the owner of a copy of his work grant him access to the work copy. In the Swiss Copyright Act, the right is referred to as the right of access .

General

The right part, in most jurisdictions, which recognize the moral rights . It serves in particular to ensure that the author can still make adaptations of his work or be inspired by his earlier work in his further work if he (for whatever reason) no longer has a copy of the work available as a template.

The right of access is not reflected in the international agreements on copyright.

Germany

standard

The German Copyright Act (UrhG) regulates the right of access in § 25 UrhG:

(1) The author can demand from the owner of the original or a copy of his work that he makes the original or the copy available to him, insofar as this is necessary for the production of copies or adaptations of the work and does not conflict with the owner's legitimate interests.
(2) The owner is not obliged to surrender the original or the copy to the author.

The right of access found its way into German copyright law when the Copyright Act came into force on January 1, 1966; since then the regulation has remained unchanged. Previously there was no legal equivalent. However, in a decision from 1951 , the Federal Court of Justice (BGH) already derived a comparable right from the author's “inalienable personal right”.

content

Property is the most comprehensive right of factual and legal control over a thing that the German legal system knows. According to section 903 sentence 1 of the German Civil Code (BGB), the owner of a thing can in principle deal with it at will and exclude others from any influence. In the meantime, “ intellectual property ” also protects the author of a work in his personal connection to his work. Although copyright and property ownership of the original work are essentially independent of each other and stand independently side by side, this results in a certain tension: Because the owner can deny anyone access to his property, the author would have, in the event that all existing copies of the work are owned by third parties sometimes no longer have access to his work. It would no longer be possible for him to even recall his previous work - the copyrighted connection between the author and the work would in fact be disrupted by third-party claims under property law . Sometimes the ownership situation in the work would also prevent the enforcement of specific copyright claims: According to § 12 UrhG , the author has the right to determine whether and how his work is to be published. However, publication requires that the author also has a copy of the work.

This is where the access right comes into play. It gives the author a claim against the owner of the original work or of a copy to grant access to it. In particular, “granting access” does not mean that the owner would have to surrender the work (Section 25 (2) UrhG). In practice, access can be granted, for example, in such a way that the owner grants the author access to certain rooms. Temporal and local circumstances of access must be agreed between the author and owner.

The main requirements for access rights are:

  • Purpose restriction : The access right only serves to enable the production of copies or adaptations. Section 25 does not grant a right of access for other purposes. An inspection with the sole aim of checking whether the owner has tampered with the work (possibly in a manner that violates copyright) is therefore not possible.
  • Requirement of access: The coveted access must also be “required” for this. This requirement is lacking if the author is denied any other access to his work or is unreasonable. Against this background, access is trivially not necessary if the author himself has a copy of the work. Even if an item is accessible in public libraries or in a public place, access is not considered required. However, if the author is concerned with certain details that cannot be traced on other existing reproductions, the owner of the original may still be entitled to access if his own or publicly accessible copies of the work are available.
  • No legitimate counter-interest of the owner: There is no right to procure access if the "legitimate interests of the owner oppose". It is therefore necessary to weigh up the interests of the author on the one hand and the ideal and material interests of the owner on the other. The consequence of this is, for example, that the author has to take into account the burden of the owner when making use of his right of access, which not only means that he must comply with the obligations of the owner when agreeing an access date, but also that the reproduction of the workpiece takes place in a way that does not endanger this as possible. For a complete refusal of access, the example of a work personally made for the owner ("family portrait or the like") is given in the official justification . In the literature, this assessment tends to be viewed critically.

In case law and literature, various obligations derived from the right of access are discussed. For example, the right of access should result in a visual artist's claim against a gallery owner to give him the name and address of the person who acquired the work in order to enable the exercise of the right of access. The right of access cannot prevent the destruction of a work copy. (According to the - controversial - view, the author is sometimes able to do this from the prohibition of distortion in § 14 UrhG.) In some cases, however, at least a building owner's obligation to provide information is advocated that the architect must be informed in advance of an intended demolition so that the author can still do so Has the opportunity to exercise his right of access. If, on the other hand, the owner destroys the workpiece with the intention of thwarting the exercise of the right of access - think of letters that the recipient's heirs try to prevent from being published - he can make himself liable for damages under Section 826 of the German Civil Code (BGB) for deliberate damage that is immoral .

The right of access is essentially indispensable.

Significance and legal policy discussion

In practice, the right of access plays a role especially with regard to (unique) works of art, for example when an architect requests access to a building he has created in order to be able to take photographs of it. An author or a composer, on the other hand, will usually keep a copy of his works. However, Wiese points to a constellation from the field of literature : If the correspondence of a famous person is to be published, the problem sometimes arises that the person's letters are with many different owners. At the same time, especially in the area of ​​handwritten correspondence, only a few keep copies of the documents they have sent. In this case, the letter author or his heirs may be able to inspect the documents using the right of access.

In addition to the existing standard, Ruzicka proposes a "public-law constructed" access right that would allow a state institution to demand the disclosure of individual manuscripts or other work pieces, provided that they are qualified scientific or artistic Interest in it. This should take into account the practical need of the general public to “gain access to art-historically or artistically significant works, even outside the copyright protection period”.

literature

  • Christian Laux: Comment on Zurich Higher Court of February 26, 2013, LK100007 - Landscape photographs . In: Journal for Intellectual Property, Information and Competition Law (sic!) . tape 17 , no. 9 , 2013, p. 524-526 . [Switzerland]
  • Albrecht Götz von Olenhusen: Originator vs. Owner et vice versa ?: On the issue of copyright access rights . In: Winfried Bullinger (Ed.): Festschrift for Artur-Axel Wandtke on his 70th birthday on March 26, 2013 . De Gruyter, Berlin 2013, ISBN 978-3-11-028351-8 , pp. 279-286 . [Germany]
  • Clemens Thiele: Schräger Pfahl - OGH for the first time to the right of access of the work creator . In: ecolex . tape 16 , no. 5 , 2005, p. 376-378 . [Austria]
  • Günther Wiese: Problems with the edition of letters . In: Peter Hanau et al. (Ed.): Festschrift for Wilhelm Herschel on his 85th birthday . Beck, Munich 1982, ISBN 3-406-08587-3 , pp. 483-501 . [Germany]
  • Lisa Wiesner: The rights of the visual artist after the sale of the workpiece . Heymanns, Cologne 2008, ISBN 978-3-452-26827-3 . [Rn. 392-438; Germany]

Individual evidence

  1. ↑ See Davies / Garnett in dies., Moral Rights , 2nd ed. 2016, § 1–007. But see, for example, Leška / Štechová in Davies / Garnett, Moral Rights , 2nd edition 2016, §§ 12–008, 12–015, 12–034 ff. (Czech Republic / Slovakia: legal assignment to exploitation rights).
  2. ↑ Davies / Garnett in dies., Moral Rights , 2nd ed. 2016, § 1-013.
  3. ↑ A. Nordemann in Fromm / Nordemann, copyright , 12th edition. 2018, § 25 marginal no. 7; Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 25 marginal no. 2.
  4. ↑ See for example Thomas Fuchs, Law on Copyright and Related Rights (Copyright Law) of September 9, 1965: Historisch-Synoptische Edition 1965–2017: § 25 , accessed on March 14, 2018.
  5. ↑ v. Gamm, Copyright Law, 1968, § 25 Rn. 2; Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 25 marginal no. 2.
  6. ↑ So BGH, ruling v. October 26, 1951, I ZR 93/51 = GRUR 1952, 257, 258 - hospital card index . V. Gamm, Copyright Law, 1968, § 25 Rn. 2, with further references to court rulings.
  7. ↑ Herrler in Palandt, Bürgerliches Gesetzbuch , 77th edition. 2018, before Section 903 marginal no. 1.
  8. ↑ BGH, ruling v. May 31, 1974, I ZR 10/73 = BGHZ 62, 331, 333 - school expansion .
  9. ↑ See for example Haimo Schack, Intellectual property versus property property , in: Commercial legal protection and copyright , vol. 85, no. 2, 1983, pp. 56–61, here p. 56 f.
  10. ^ Similar to Wiesner, The rights of the visual artist after the sale of the workpiece , 2008, op. Cit., Rn. 392.
  11. ^ Henrik A. Bergemann, rights to letters , Nomos, Baden-Baden 2001, ISBN 3-7890-7437-3 , p. 82; Georgios Koumantos, Rights to Letters: A Comparative Law Sketch , in: Hans Forkel (Ed.), Contributions to the protection of personality and its creative achievements: Festschrift for Heinrich Hubmann on his 70th birthday , Metzner, Frankfurt am Main 1985, ISBN 3-7875 -5307-X , pp. 193-200, here p. 196 ff.
  12. ↑ A. Nordemann in Fromm / Nordemann, copyright , 12th edition. 2018, § 25 marginal no. 11.
  13. ↑ Dreyer in Dreyer / Kotthoff / Meckel, Copyright , 3rd edition 2013, § 25 Rn. 16.
  14. ↑ See the illustration in Wiesner, Dierechte des bildende Künstler nach Vergabe des Werkes , 2008, op. Cit., Rn. 408 ff.
  15. ↑ Haberstumpf in Büscher / Dittmer / Schiwy, commercial legal protection, copyright, media law , 3rd edition 2015, UrhG § 25 Rn. 10; A. Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, § 25 Rn. 13; Wiesner, The rights of the visual artist after the sale of the workpiece , 2008, op. Cit., Rn. 409 ff.
  16. ^ Higher Regional Court Düsseldorf, ruling v. September 8, 2015, I-20 U 75/14 (juris, marginal number 81); Ruling v. January 30, 1979, 20 U 149/78 = GRUR 1979, 318, 318 - stringers ; Dreyer in Dreyer / Kotthoff / Meckel, Copyright , 3rd edition 2013, § 25 Rn. 3; Haberstumpf in Büscher / Dittmer / Schiwy, industrial property rights, copyright, media law , 3rd edition 2015, UrhG § 25 Rn. 10; Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 25 marginal no. 12.
  17. ↑ A. Nordemann in Fromm / Nordemann, copyright , 12th edition. 2018, § 25 marginal no. 16; Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 25 marginal no. 13.
  18. ↑ Haberstumpf in Büscher / Dittmer / Schiwy, commercial legal protection, copyright, media law , 3rd edition 2015, UrhG § 25 Rn. 11; A. Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, § 25 Rn. 16; Schulze in Dreier / Schulze, UrhG , 5th edition 2015, § 25 Rn. 19; Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 25 marginal no. 13.
  19. ↑ Wiesner, The rights of the visual artist after the sale of the workpiece , 2008, op. Cit., Rn. 416, with further evidence.
  20. ↑ Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 25 marginal no. 16.
  21. ↑ Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 25 marginal no. 16. Illustrativ KG, ruling v. February 8, 1983, 5 U 376/82 = GRUR 1983, 507, 509 - death mask II for the casting of a bronze sculpture in a foundry; on the interests concerned in general: OLG Munich, ruling. April 22, 1993, 6 U 4067/92 (juris, Rn. 6 ff.).
  22. ↑ Official justification, BT-Drs. 10/837 , p. 52.
  23. ↑ See Dreyer in Dreyer / Kotthoff / Meckel, Copyright , 3rd edition 2013, § 25 Rn. 12; Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 25 marginal no. 17 (at least not problematic if reproduction is only intended for the author's own archive); Wiesner, The rights of the visual artist after the sale of the workpiece , 2008, op. Cit., Rn. 420 f .; Restricting also Haberstumpf in Büscher / Dittmer / Schiwy, commercial legal protection, copyright, media law , 3rd edition 2015, UrhG § 25 Rn. 12 (The owner's interest in any case loses weight if the work has already left the personal or private sphere once).
  24. ↑ In this sense, LG Hamburg, ruling. June 30, 2006, 332 O 275/05 (juris, para. 13); A. Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, § 25 Rn. 1a, 18; Schack, Art and Law , 3rd ed. 2017, Rn. 665; Gabor Mues, The Exhibition Contract , Peter Lang, Frankfurt am Main 2003, ISBN 3-631-51068-3 , p. 82; as a result Gerhard Pfennig, Art, Market and Law: Introduction to the Law of Art Creation and the Exploitation of Art , 3rd edition, MUR, Munich 2016, ISBN 978-3-945939-03-1 , p. 61.
  25. ↑ Official justification, BT-Drs. 10/837 , p. 52; Dreyer in Dreyer / Kotthoff / Meckel, Copyright , 3rd edition 2013, § 25 Rn. 20; Haberstumpf in Büscher / Dittmer / Schiwy, industrial property rights, copyright, media law , 3rd edition 2015, UrhG § 25 Rn. 16; Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 25 marginal no. 23.
  26. ↑ Schack, Art and Law , 3rd ed. 2017, Rn. 818.
  27. ^ So Dreyer in Dreyer / Kotthoff / Meckel, Copyright , 3rd edition 2013, § 25 Rn. 20; Haberstumpf in Büscher / Dittmer / Schiwy, industrial property rights, copyright, media law , 3rd edition 2015, UrhG § 25 Rn. 16.
  28. ↑ A. Nordemann in Fromm / Nordemann, copyright , 12th edition. 2018, § 25 marginal no. 3; Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 25 marginal no. 7th
  29. ↑ Ulmer, Copyright and Publishing Law , 3rd edition 1980, p. 221; Vogel in Schricker / Loewenheim, copyright , 5th edition 2017, § 25 marginal no. 4, 10; Wiesner, The rights of the visual artist after the sale of the workpiece , 2008, op. Cit., Rn. 393.
  30. ^ Wiese, Problems with the Edition of Letters , 1982, op. Cit., Pp. 484–490. See also Albrecht G. von Olenhusen, The conflict between the right to property in the workpiece and the copyright in the work , in: Archive for Copyright and Media Law (UFITA) , No. 2, 2013, pp. 335–352, here p 344 f.
  31. ^ Peter Ruzicka, The problem of an "eternal moral right" , Schweitzer, Berlin 1979, ISBN 3-8059-0526-2 , p. 143 f.