Creators' Rights Alliance - Between a rock and a hard place - Appendix 2: Select European Laws
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Germany

The German[1] Copyright Act of 9 September 1965 (as amended) confers copyright protection on ‘literary, scientific and artistic works’, including photographs and films,[2] as long as the works are original in the sense of being their author’s personal intellectual creations. The rights given to an author include both moral rights, exploitation rights and ‘other rights’ including remuneration rights. The rights are given to the creator and, as in the UK, subsist until 70 years after the death of the author. The most distinctive feature is that none of the rights can be assigned or transferred,[3] they may only be licensed. This is because in German theory, moral and economic aspects of copyright are indivisible. Consequently, “a nucleus of powers, mainly but not altogether derived from the personal interests represented by moral right, always remains ‘with’ the author”.[4]

The moral rights are referred to as the “author’s rights of personality” (Urheberpersönlichkeitsrecht) and include: the right of dissemination;[5] the right of attribution;[6] the right of integrity;[7] and the right to access copies of the work.[8] These rights cannot be waived in advance for future works (though an author can consent to specific acts that have arisen, such as a particular modification of a work). Although these rights are broad, in determining whether they have been violated, an author’s interests are weighed against the economic interests of a licensee. An author is given the right of revocation where a right has not been exercised or not adequately exercised.[9] The exercise of the right of rescission for non-use can only be exercised two years after the agreement and can be waived for five years. An author is also given a right of revocation for change of conviction,[10] although since this requires the author to indemnify the licensee, it is of little practical significance.

The exploitation rights encompass the exclusive right to exploit his work in material and non-material form (s.15): the right of reproduction, distribution and exhibition;[11] the right of performance, broadcasting etc.[12] Given that in most cases authors do not exploit their own works and that transfers are forbidden, copyright tends to be exploited by the grant (einräumung) of exclusive “right to use” the work.[13] (Further transfers of these rights need the author’s consent, not to be unreasonably withheld).[14] As with UK law, the principle of freedom of contract applies, but is subject to some important limitations. The law in this area was amended by the German legislature with effect from 25 April 2002.

(i) The grant of a licence for means of utilization not yet existing is without legal effect.[15]The question of whether a method of use is not yet known is a difficult one, with German commentators taking different positions.[16] The better view must be that the question is whether it is sufficiently known as a potential mode of exploitation, such that it is possible for the author to assess its significance and economic value as a mode of exploitation and thus sensibly enter into a contract.[17] Thus the grant of rights to make records of a song in 1979 was taken not to cover the sale in CD format; and the grant of rights to use in motion picture in 1968 did not cover video cassette sales.[18] However, in the Klimbim decision, the Federal Court held that satellite broadcasting and cable transmission did not qualify as new types of use when compared with conventional broadcasting.[19] The key question is when the technology is deemed to have become known. It has been suggested that in the case of on-line databases the relevant period will be 1982-4, that in the case of CD-ROM use of press products in unabbreviated form, the date will be 1988, and with respect to multimedia the early 1990s.[20]

(ii) All licences which do not specifically enumerate uses are interpreted to give effect to the “purpose-of-grant” (Zweckübertragungsgrundsatz). This means that a general clause giving “exploitation rights” will be construed narrowly as confined to those exploitation rights then needed to carry out the licensee’s business.[21] In one case, an agreement by the author of a manuscript for the programme ‘Anneliese Rothenberger’ to transfer “the exclusive right to use the work for all broadcasting and film purposes, even to the extent that such uses in these fields are not yet known or have not yet been invented” was interpreted by the Federal Supreme Court as NOT conveying the right to produce copies of the film in Super-8 cassette form. It explained that the theory of Zweckübertragungsgrundsatz meant that the purported ‘blanket’ grant was ineffective and had to be objectively limited, by reference to what was ‘normally’ transferred, and the scope of the activities of the end-user (a public broadcaster).[22] The theory “rests upon the principle that the author is to participate to as great an extent as possible in the enjoyment of the economic fruits attendant on the exploitation of his work. Accordingly, in cases of doubt, the transfer of rights is limited to those which are necessary to that exploitation of the creative product which has been particularized and made definite by the contract language.” Since the film production company was providing the film to a public broadcaster, the court found that the author did not intend to transfer more rights to the producer than the producer would give the broadcaster.[23] This interpretation was reinforced by the specific inclusion in the assignment of rights to use the work in education, which would have been unnecessary had the effect of the general clause been as the licensee argued. In a more recent case, a licence to print photographs in the magazine Der Spiegel was held not to justify exploitation on a CD-ROM edition of the magazine[24].

(iii) When an author grants a right to use a work, he is deemed in any case of doubt, to have reserved the right to make available to the public or to exploit derivative works.[25]

(iv) An author can request that a contractually agreed remuneration be varied to ensure he or she is given “adequate remuneration” (angemessene Vergütung). This was only added through the recent amendment. The right to amend the contract is unwaivable (but transferable to a collecting society). The court is directed to consider a series of factors when considering an author’s claim. Collectively negotiated tariffs (under Art. 36) are be given presumptive weight.

(v) If an author has granted a licensee rights under conditions such that the contract results in a grossly disproportionate (auffälligen Missverhältnis) division of profits, the author can demand revision of the agreement;[26] (the best-seller clause).[27] This is seen as a special application of a general doctrine relating to "the abolition of the foundations of business.”[28] The idea is that the success of the work has so changed the basis of the agreement, that the agreed terms require reformulation.

(vi) Under Article 39, a licensee may not alter the work, its title or the designation of the author unless an agreement exists to that effect. A licence may grant the right to alter a work, and this will limit the exercise of the moral right of integrity.

(vii) A right of termination exists: an agreement may be terminated five years after its conclusion.[29]

(viii) Special rules apply to (music and literature, but not photographic) publishing agreements under the Publishing Act of 19 June 1901. These establish presumptions, such as that, in the absence of agreement, the exclusive licence granted to the publisher covers one edition only; that the author retains translation and film rights. In most cases the presumptions are superseded by express contracts.

(viii) Special rules apply to film production agreements

 



[1] A. Dietz, in M. Nimmer & P. Geller (eds.), International Copyright Law and Practice.), World Intellectual Property Guidebook: Federal Republic of Germany, Austra, Switzerland (New York: Matthew Bender, 1991) Germany Ch 4. (New York: Matthew Bender 2000, annually updated) (hereafter Dietz); S. Rojahn, in B Ruster (ed)

[2] Germany, Art. 2.

[3] Germany, Art. 29 (as amended in 2002).

[4] Dietz, para 4(2), GER-51.

[5] Germany, Art. 12.

[6] Germany, Art. 13.

[7] Germany, Art. 14.

[8] Germany, Art. 25.

[9] Germany, Art. 41.

[10] Germany, Art. 42.

[11] Germany, Arts 16-18.

[12] Germany, Arts. 19-22.

[13] Germany, Art. 31.

[14] Germany, Art. 34(4) as amended in 2002.

[15] Germany, Art. 31(4) (unaltered by recent legislation).

[16] D. Reimer, ‘Copyright Problems of the New Audiovisual Media’ (1974) 5 International Review of Industrial Property and Copyright Law 180, 193-4 (describing various positions).

[17] Videozweitauswertung III BGH 25 Jan 1995 (1997) ECC 71 (though recognizing the possibility that high risk contracts may legitimately be formed when technologies are new, but indicating that to be valid the new, still economically insignificant form of use should be clearly named, expressly agreed upon and discussed by the contracting parties so that it is recognizably the subject matter of an undertaking and of consideration in return.)

[18] KG Berlin, 30 July 1999, 2000 ZUM 164; Videozweitauswertung, BGH 11 Oct 1990, 22 International Review of Industrial Property and Copyright Law 574 (1991); Videozweitauswertung III BGH 26 Jan 1995 (1997) ECC 71 .

[19] Decision of 31 May 1996. Described in A. Dietz, ‘Copyright Law Developments in Germany from 1993 to Mid-1997’ (1998) 176 Revue Internationale de Droit D’auteur 166, 214-8.

[20] T. Dreier, ‘Adjustment of Copyright Law to the Requirements of the Information Society’ (1998) 29(6) International Review Of Industrial Property And Copyright Law 623, 638.

[21] Das Haus in Montevideo (1970) 1 International Review Of Industrial Property And Copyright Law 153 (grant of motion picture rights did not cover television exploitaton because that was not unequivocally expressed); BGH GRUR 1979 at 637-9; (1980) 11(4) International Review Of Industrial Property And Copyright Law 544 – White Christmas (performers contract giving right to reproduce recordings in any manner available at present or in the future was interpreted as being confined to normal modes of distribution and thus did not cover sale through non-record shops accompanied by four bars of chocolate).

[22] In contrast with rules of formal specificity, such as those in France, the failure to specify does not produce invalidity, but rather a limited interpretation: see H.-P. Hillig, ‘Contactual Freedom in German Copyright Law’ in H. Cohen Jehoram (ed.), Copyright Contracts 121, 126-7 (Sijthoff, Alphen aan den Rijn, 1977) (explaining background to Art 31(5).

[23] BGH GRUR 1974 at 786-87 – Kassettenfilm, in English at (1975) 6 International Review Of Industrial Property And Copyright Law 349; discussed in E. Ulmer, ‘Some Thoughts on the Law of Copyright Contracts’ 7 International Review Of Industrial Property And Copyright Law 202, 214-5. In Bruno Schmidt Schmalfilmvertrieb OHG v GEMA (Schmalfilmrechte) (30 June 1976) (1978) 9 International Review of Industrial Property and Copyright Law 62, the Federal Supreme Court gave a similar ruling as regards a music-film contract between composer and a film company, holding that it did not authorize sale for domestic use). And in Re Copyright in the Translation of a Literary Work, Case I ZR 57/97 [2001] ECC 264, where there was no written agreement, the Federal Supreme Court relied in Art. 31(3) when determining the position of a translator who had translated cartoons in paperback form which were later reprinted and republished in comics).

[24] Court of Appeal, Hamburg; Oberlandsgericht Hamburg, 5 Nov 1998, 1999 ZUM 78. Discussed, with other cases, in B. Hugenholtz & A de Kroon, ‘The Electronic Rights War. Who Owns the Rights to New Digital Uses of Existing Works of Authorship?’ (2000) IRIS (Legal Observations of the European Audiovisual Observatory) 16

[25] Germany, Art. 37.

[26]  Germany, Art. 32a (as amended in 2002).

[27] A response, no doubt to the case of Robert Stolz Im weissen Rossl, Federal Supreme Court, 19 Jan 1962: see P. Katzenberger, ‘Protection of the Author as the Weaker Party to a Contract under International Copyright Law’ (1988) 19(6) International Review of Industrial Property and Copyright Law 731, 732-3.

[28] See H.-P. Hillig, ‘Contactual Freedom in German Copyright Law’ in H. Cohen Jehoram (ed.), Copyright Contracts 121, 128 (Sijthoff, Alphen aan den Rijn, 1977).

[29] Germany, Art. 40.

 

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