The most important facts about copyright at a glance

Copyright law is a complex legal matter. But authors in particular should know their rights in order to be able to protect them effectively.

Copyright law offers a sophisticated and comprehensive system of protection and attempts to reconcile the interests of authors with those of the general public. Where this does not succeed, it provides authors with comprehensive rights to defend their own interests against unlawful interference by third parties. It is up to the individual authors themselves to enforce these rights in court if necessary and to protect their works.

What is copyright?

Copyright is a property right that regulates the relationship of an author (and his legal successors) to his creations, the so-called works. It protects the intellectual property of the author. Copyright is primarily regulated in the Copyright Act (UrhG). In addition to copyright itself, it also contains a large number of other (performance) property rights, such as the protection of photographs (Section 72 UrhG), the protection of moving images (Section 95 UrhG) or the property right of the producer of sound recordings (Sections 85 et seq. UrhG).

Unlike trademark or patent rights, for example, copyright arises automatically with the creation of the respective work. It does not have to be published or registered anywhere. Nevertheless, it is a very far-reaching, so-called absolute property right. The author alone is entitled to it. It is not possible to transfer the copyright to others, which means that the author alone is entitled to the copyright during his or her lifetime.

Protection does not end with the death of the author, but is transferred to the author’s heirs. The author’s heirs can, in accordance with. § 64 UrhG (German Copyright Act) up to seventy years later.

However, it is possible for the author, and later his heirs, to grant third parties rights to use the copyright. This is done through licenses and entitles third parties to use the work in a certain way. This is not possible if the moral right of the author is affected. This cannot be transferred or licensed.

What is a copyright work?

Copyright protects the work of the respective author. A work can take many different forms. In § 2 Abs. 1 UrhG contains a catalog of exemplary types of works:

1. Linguistic works, such as written works, speeches and computer programs;
2. Works of music;
3. pantomime works including works of dance art;
4. Works of fine art, including works of architecture and applied art, and designs of such works;
5. Photographic works, including works created in a similar way to photographic works;
6. Cinematographic works, including works created in a manner similar to cinematographic works;
7. Representations of a scientific or technical nature, such as drawings, plans, maps, sketches, tables and plastic representations.

This list is by no means exhaustive. Copyright law is also open to new and previously unknown forms of expression of human creativity.

However, the work is always more than a mere idea: it is a manifested “personal, intellectual creation”, Section 2 para. 2 UrhG. It must therefore have been given a humanly perceptible form. A purely random or natural form is not sufficient. Rather, the author’s idea must be reflected in the result.

§ Section 3 UrhG stipulates that “translations and other adaptations” can also constitute works in their own right and are protected independently. Several copyrights then exist equally and independently of each other.

Collections of individual works (e.g. illustrated books) and databases can also receive independent copyright protection as collective works or database works, Section 4 UrhG.

For many official works, however, e.g. laws and official guidelines of court decisions, copyright law does not apply, § 5 UrhG.

Who is the author and therefore the copyright holder?

The author is the creator of the respective work. As every person is fundamentally capable of creating works, legally incompetent persons and persons with limited legal capacity, such as minors, can also be authors. In such cases, the interests of the author are represented by the legal representatives. However, the representatives are not authors themselves.

If a work is created jointly by several persons, all participants are co-authors pursuant to Section 8 UrhG. They hold the same copyrights to the work and must exercise them jointly. The resulting income (e.g. license fees) is usually distributed between the co-authors in proportion to their respective share of the creation.

Because a copyright presupposes a “personal” intellectual creation, only natural persons can be authors, but not legal entities. However, legal entities can be licensed rights of use by the authors.

Since a copyright does not have to be applied for or registered anywhere, it can be complicated to prove that you are the author of a work in the event of a dispute. § For this reason, Section 10 UrhG provides the legal presumption that the author is the person who is designated as the author in the usual manner on the reproductions of a published work or on the original of a work of fine art. This presumption applies until the contrary is proven.

What rights does an author have?

The author has a number of rights that are regulated by copyright law in Sections 12-27 UrhG. On the one hand, these include the so-called moral rights of the author, e.g. the right to “recognition of authorship”, i.e. to be named as the author, under Section 13 UrhG. On the other hand, (economic) exploitation rights are also included. These are, for example, the right to reproduction (Section 16 UrhG), distribution (Section 17 UrhG) and making available to the public (Section 19a UrhG).

If a third party exercises a copyright without the consent of the copyright holder, i.e. has not obtained a right of use, this is a copyright infringement. However, copyright is not valid indefinitely, but usually ends 70 years after the death of the author, Section 64 UrhG.

How can third parties acquire copyrights?

The author cannot transfer his exploitation rights to third parties, but he can grant third parties so-called rights of use (license rights). The rights can be restricted in various ways, in particular in terms of territory (e.g. only for Germany), time (e.g. for one year) and content (e.g. limited to the performance right).

Licenses can also be exclusive, i.e. only one licensee receives the corresponding rights. This is often referred to as an “exclusive license”. It can also be stipulated whether the licensee may sublicense the acquired rights to third parties (so-called sublicensing).

However, moral rights cannot be transferred. These are indissolubly linked to the author himself until the end of his life.

How can copyrights be protected and defended?

It is very difficult to protect against copyright infringements. However, once a work has been published, the author can defend his rights both out of court, by means of a warning letter, and in court. He is entitled to various claims against the infringer, in particular for injunctive relief and removal (Section 97 (1) UrhG), damages (Section 97 (2) UrhG) and information (e.g. from Section 101 UrhG or Section 242 BGB).

In Section 97a UrhG, the law even advises the issuance of a pre-litigation warning letter in an attempt to resolve disputes without involving the courts. As part of such a warning, the infringer is requested to submit a declaration to cease and desist (“UVE”). This contains a contractual penalty. If the infringer subsequently breaches the cease-and-desist letter, i.e. forfeits his contractual penalty, the author or rights holder can claim this contractual penalty.

If the warning is unsuccessful, i.e. the infringer does not submit an EIS, the author can assert their rights in court. Depending on the case constellation, it may be advisable to initiate accelerated proceedings, known as interim legal protection. This allows the court to make a provisional ruling in order to protect the author’s rights as quickly and effectively as possible. This is done in what is known as interim injunction proceedings. On the other hand, no final decisions can be made due to the provisional nature of the proceedings, meaning that claims for damages and, in most cases, information cannot be asserted.

If preliminary injunction proceedings are not an option or are not necessary, the copyrights can of course also be asserted in “normal” court proceedings.

Can works be used without a copyright license?

In addition to the possibility of licensing copyright usage rights, the law also provides for various exceptions and restrictions to copyright. These allow (limited) use even without a license and are regulated in Sections 44a – 63a UrhG. These are the so-called “limitations of copyright”.

The barriers serve different purposes and are subject to different conditions. Some represent a type of compulsory license because they permit use but also provide for remuneration for the author. Others, on the other hand, are free of charge.

Among the best known are the right to quote (§ 51 UrhG), the right to private copying (§ 53 UrhG), freedom of panorama (§ 59 UrhG) and the various rights for use for teaching, science and institutions (§§ 60a – 60h UrhG).

d9e47e44cdc64953a0344ed949b557c3

Contact person

Free newsletter

Matching contributions

Search

Request