The term of protection of works under copyright law

Copyright protects various rights of an author. An overview of how long this protection lasts and who benefits from it in the event of death.

Most authors will hardly ever have to deal with the question of the term of protection of their own works. However, it can be very important for third parties to know whether copyrights continue to exist for a particular work.

How long does copyright normally apply?

As an absolute property right, copyright is not only an effective right of the author, but also a legally intended restriction for the general public. To compensate for this, not only were various limitations introduced. Rather, copyright was also limited in time.

The regulations on the duration of copyright can be found primarily in Sections 64 – 69 UrhG. According to. § 64 UrhG, copyright lasts “seventy years after the death of the author [erlischt]” .

This 70-year period begins in accordance with. § Section 69 UrhG at the end of the year in which the author dies. In any case, the copyright therefore “survives” the author. The 70 years is therefore also a kind of minimum protection period and the exact duration depends on how long an author lives after the creation of their work. Only the year of the author’s death is important for the calculation, not when exactly he died or when exactly he created the work.

Example: U is 14 years old when she paints a painting worthy of copyright protection in May 2014. She dies at the age of 88 in February 2088. The term only begins at the end of the year, so that the copyright expires 70 years later, on January 1, 2159. The copyright then existed for a total of just over 145 years.

Who “owns” the copyright after the author has died?

Copyright is transferred to the legal successors of the author. This is regulated in § 30 UrhG. This usually refers to the heir pursuant to Section 1922 (1) BGB. However, it can also be a legatee or similar. If the legal successor also dies within the term of protection, their legal successor in turn receives the rights from the copyright.

The legal successor generally receives the copyright in full. This includes, on the one hand, the exploitation rights and, on the other, the moral rights. According to the prevailing opinion, the legal successor may also exercise the moral rights at his own discretion and is generally not bound by any wishes of the author.

However, the author can issue instructions during his lifetime to restrict the power of disposal of his legal successors. Hermann Hesse, for example, stipulated that his works may not be filmed. Such decisions and controls are often implemented by the author appointing one (or more) executor(s).

In addition, there are individual legal restrictions and special features. These relate, for example, to the exercise of the right of recall due to changed conviction (Section 42 (1) sentence 2 UrhG and Section 46 (5) UrhG) or enforcement against the legal successor (Sections 115 et seq. UrhG).

How is the term of copyright protection calculated for multiple authors?

If there are several authors (the so-called co-authors), the copyright only expires 70 years after the death of the longest living co-author, § 65 para. 1 UrhG.

The law also has two special features: In the case of cinematographic works and musical compositions with lyrics, there is an exhaustive list of persons whose death is decisive for the start of the calculation of the term of protection. These include, for example, the main director and the screenwriter of the film work.

What applies to works whose author is not known (anonymous and pseudonymous works)?

Even in the case of anonymous and pseudonymous works, the general public should be able to determine the term of protection themselves and achieve a certain degree of legal certainty. § Section 66 para. 1 UrhG therefore stipulates that copyright in anonymous and pseudonymous works expires 70 years after the first publication. If the work has never been published, the period even applies from the creation of the work.

However, there are three cases in which the standard term of protection under Sections 64 and 65 UrhG also applies to anonymous and pseudonymous works:

  • The author subsequently reveals his identity. This can also be done by the legal successor.
  • The pseudonym is so well known that there is no doubt about the identity of the author.
  • The true name of the author is entered in the register of anonymous and pseudonymous works.

However, these cases must occur before the (shortened) term of protection under Section 66 para. 1 UrhG has expired. It is not possible to subsequently “revive” a term of protection that has expired.

The register of anonymous and pseudonymous works used to be known as the Register of Authors and is maintained by the German Patent and Trade Mark Office (DPMA). However, the DPMA does not check the entries completely, but only for their conclusiveness. In practice, this register is negligible anyway, as there are usually fewer than 10 applications per year; in 2017, for example, there was not a single one.

What happens to a work after its copyright has expired?

After the term of protection ends, a work is considered to be in the public domain. This means that it can be freely used by anyone without restrictions. They neither need permission nor do they have to pay any remuneration.

In individual cases, however, there may be other property rights that last longer than the copyright property right. For example, a work title protection under trademark law pursuant to Sec. §§ 5 Abs. 3, 15 MarkenG should be considered.

Are there exceptions to the regular term of protection?

Some of the so-called “related rights”, which are also regulated in the Copyright Act, have considerably shorter terms of protection. Worth mentioning here are in particular the so-called photographs acc. § 72 UrhG and motion pictures acc. § 95 UrhG. To put it bluntly, these are photos and videos that do not have the necessary level of creativity for protection as a copyright work (i.e. photographic work and motion picture work). The term of protection here is 50 years after publication of the photograph or motion picture or, if these have not been published, after production.

What international regulations apply to the term of protection?

Copyrights have long been exploited and transferred internationally. For this reason, most countries worldwide have agreed on uniform minimum standards with regard to the respective copyrights. These are set out in particular in the so-called Revised Berne Convention (RBC). The first version of this was adopted back in 1886. Currently (October 2019), 177 countries have already signed up to it.

The RBC provides for a minimum term of protection of 50 years after the death of the author. However, the European Union, like some other countries (e.g. the USA), has voluntarily extended this term of protection. A minimum term of protection of 70 years after the death of the author applies in all EU member states. In Mexico, there is even a term of protection of 100 years after the death of the author.

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