Copyright law of Germany

German authors' right or Deutsches Urheberrecht is codified in the Gesetz über Urheberrecht und verwandte Schutzrechte (also referred to as Urhebergesetz or Urheberrechtsgesetz and abbreviated UrhG).

It should not be confused with copyright (exclusive rights to copy granted to distributors), and is more akin to authors' rights (exclusive rights to profit off one’s work granted to authors).

Protection requirements

Court decisions have set vastly different standards for the eligibility of works of applied art on the one hand and other types of work on the other, especially fine art. While the barrier is usually very low for fine art and protection is granted even for minimal creativity (dubbed "kleine Münze",literally "small coin" or "small change"),^[1] there are extremely high standards for applied art to be reached for it to achieve copyright protection.^[2] This is so because Geschmacksmuster (design patents) and Schriftzeichengesetz (typeface patents) are seen as lex specialis for applied art such that the threshold of originality must not be assumed low for them. This has been confirmed by courts several times, especially for logos, but also for earrings.

Transfer

The Urhebergesetz is an authors’ right (“droit d’auteur”) or “monistic” style law. As such there is a special emphasis on the relation between the work and its actual author.^[3] The right is perceived as an aspect of the author’s general personality right and as a general rule is therefore inalienable. This also means that there is no corporate copyright in Germany^[4] and the fundamental rights cannot be transferred except by heritage.^[5]

Licenses

While exclusive licenses are almost as powerful as copyright transfer, the author always retains some rights to the work, including the right to prevent defacing and to be identified as the author.^[6] Employment agreements are frequently construed as granting the employer an exclusive license to any works created by the employee within the scope of his obligations. For computer software, the copyright act expressly provides that all economic usage rights (as opposed to personality rights) “belong” to the employer.^[7]

A recent amendment of the Urhebergesetz (sec. 31a, included in 2008) has created the possibility to grant licenses for "unknown uses", i.e. permit use of works in media not known at the time the license is granted. This had not previously been possible, so that even "unrestricted" licenses granted before the mid-1990s did not (and could not) include the right to use the work on the internet, which created considerable practical problems.

Collection

Copyright societies that collect royalties as part of compulsory licensing in the European Union (EU) usually hold monopolies in their respective national markets.^[8] In Germany, case law has established the so-called GEMA Vermutung, a presumption that works are managed by the Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA) due to its monopoly position.^[9] As such, in Germany the burden of proof is on the accused infringer that the work is not managed by GEMA.^[9]

EU Directive

Germany has implemented the EU Copyright Directive 93/98/EEC. Parts of the Directive were based on German authors’ right law in the first place, e.g. the duration of copyright term: German authors’ right law had previously granted protection for 70 years after the death of the author,^[10] which was the longest term of all EU member states; before 1965 it was life plus eighty years.

History

According to historian Eckhard Höffner the 1710 introduction of copyright law in England and later in France acted as a barrier to economic progress for over a century, while Germany prospered in the same time frame due to the lack of copyright laws. Höffner argues that copyright laws allowed British publishers to print books in limited quantities for high prices.^[11][12]

See also

• Image copyright (Germany)

References

1. ^ Fromm/Nordemann/Nordemann/Vinck, Urheberrrecht, § 2 Rn. 20; Loewenheim, Handbuch des Urheberrechts, § 9 Rn. 103
2. ^ Rehbinder, Urheberrecht, Rn. 130, 131, 151
3. ^ Cf. sec. 11 UrhG
4. ^ Cf. sec. 7 UrhG
5. ^ Cf. sec. 28 et sqq. UrhG
6. ^ Cf. sec. 13 et sqq. UrhG
7. ^ Sec. 69b UrhG
8. ^ Torremans, Paul (2007). Copyright Law: A Handbook of Contemporary Research. Research Handbooks in Intellectual Property. Cheltenham: Edward Elgar Publishing. p. 263. ISBN 9781845424879. http://books.google.com/books?id=wHJBemWuPT4C&pg=PA263. 
9. ^ ^{a b} Torremans 2007, p. 265, footnote 41.
10. ^ Sec. 64 UrhG
11. ^ Der Spiegel August 18 2010 article: No Copyright Law
12. ^ Geschichte und Wesen des Urheberrechts (History and nature of copyright) by Eckhard Höffner, July 2010 (in German) ISBN 3930893169