The copyright applies to unpublished works
Copyright: what should be considered when it comes to intellectual property?
From copyright.de, last update on: May 11, 2021
On this and the following pages you will find important information on the subject of copyright and the consequences of copyright infringements.
Copyright includes legal regulations for the exploitation and protection of intellectual property. It defines the rights of authors and exploiters.
If a work fulfills the requirements of copyright law, it is considered to be protected by copyright. According to the copyright law, this requires the creation of a creative effort and the originality of the work.
You do not have to register the copyright, it arises automatically with the creation of the work.
Yes, the copyright expires at the latest 70 years after the death of the author and the work is then considered to be in the public domain.
Copyright: the most important terms defined
Copyright is a complex and far-reaching area of law which closely related to media law is. In order to make the following guide easier to understand, but also the corresponding legal texts, we provide right at the beginning for the important copyright terms a definition.
Which does ______________ mean…?
The Creator of a work designated. This term therefore includes authors, composers, choreographers, designers, painters, sculptors, inventors and programmers as well as other professional groups who have created a work on the basis of productive and creative work. The author has the right about recovery of his work decide.
Everyone who is their own and personal Idea in a tangible form brings is a creator. Which is why the works of children and people with disabilities can also fall under copyright law. Their rights are then exercised by the legal guardian.
Copyright does not protect the idea, but only that through personal intellectual creation resulting work. In order for a work to be created, an author is required. This gives his idea one form perceptible by the human senses.
The shape is characterized by a not random or natural arrangement from, but clearly follows the will of the author. The manufacturing effort, the scope, the purpose and the illegality of the content are insignificant for the definition of the work.
The Property rights for drafts, inventions and works designated. Alternatively, the term "Intellectual property law" Use that makes it clear that these are intangible, spiritual goods.
The protection of intellectual property is among other things through following laws guarantees:
- Patent law
- Trademark law
Personal spiritual creation
Only a work that is a personal intellectual creation can fall under copyright law. The plant must something new be what stands out from what is already there and a creative achievement reveals.
In order for a personal intellectual creation to be protected by copyright as a work, four requirements to be fulfilled:
- The work must be the result human creativity be.
- The work must be done through the human senses perceptible be. It is not necessary to choose a permanent shape.
- The work must be a creative achievement represent.
- The work must be carried out by the author and his personality being shaped.
With it a personal spiritual creation perceived by the public recovery is required. The The author is in possession of the exploitation rights and can take care of them himself or, if necessary, transfer them to so-called users as rights of use.
The term recovery includes, among other things Types of use such as copying, distribution, exhibition, communication to the public and editing of the work. The originator must be each of these Agree to recoveries, contracts are usually drawn up for this.
On the one hand, the contracts Remuneration of the author regulated, on the other hand through contractual regulations the Distortion or unwanted editing prevented become.
Recyclers use the acquired rights of use to create a to achieve financial gain. Classical exploiters are, among other things, record producers in the case of musical works and publishers in the case of literary works.
If a user acquires certain rights of use, he must also endeavor to use them accordingly. Remains one Recovery within a specified period the author can revoke the rights. This can be the case, for example, if a screenplay cannot be implemented on film due to a lack of financial means.
If artists and authors do not have enough time or expertise to manage and claim their copyrights individually, the collecting societies (VG) step in. These to take on behalf of the authors of their Rights in trust true and monitor whether the financial demands are met.
The three major collecting societies in Germany are:
- GEMA for composers, musicians and music publishers
- VG picture art for visual artists, photographers, designers, picture agencies, painters, draftsmen, directors, cameramen, choreographers, ...
- VG word for authors, translators and publishers
The story of copyright
In contrast to many other rights and contracts of our time, copyright does not go back to models from the Roman or Germanic empire. His origin has it in the late Middle Ages and in modern times. This is a relatively new law.
That had a particular influence Invention of the printing press with movable letters in the middle of the 15th century in Mainz, because this made the Requirement for the mass production of documents created at an affordable price.
But this also had that Advent of competitors result. The works, which were lavishly written and set by the printers, were reprinted in large numbers at low cost. So that the work of the printers continued to pay off, the so-called "Printer Privileges" introduced. These spoke to a single printer, usually over a period of two years sole privilege to reprint in a specific language too. This is the first form of copyright.
With the emergence of the book trade, the importance of authors, at that time still referred to as scholars, grew. In the wake of heaped Plagiarism lawsuits through the scholars among themselves, ideas came for the first time on topics such as Originality, Intellectual Property, Copyright Law and Authorship on.
First 1835 was created in the German-speaking area first legal regulation for the protection of intellectual property. A uniform copyright law for Germany with the designation "Law concerning the copyright in works of the fine arts" occurred in 1871 in force after the establishment of the German Empire.
The 20th century was from diverse developments that also affected copyright law:
The exploitation of intellectual creations takes place beyond national borders.
- Technical progress
New media emerged and made it necessary to adapt the legal regulations.
Urbanization increased the demand for cheap, industrially manufactured media. Books but also phonograms became mass products.
- Change in career choice
More and more people can or want to live from creative work and work in professions that are relevant to copyright. The legislature recognizes many products of this activity as worthy of copyright protection.
On these developments was with Additions and new guidelines responds. In addition Interest groups emergedwho advocate the protection of authors and exploiters. One of these is the “Cooperative for the Exploitation of Musical Performance Rights”, which was founded in 1915 and is better known today as “GEMA”.
The central norm on copyright law in Germany, which is still valid today, came into effect on January 01, 1966 under the title "Law on Copyright and Related Rights" in force. This is also known under the short title “Copyright Act” (UrhG) and is regularly supplemented and revised.
Below are some additions listed:
- 1993 - Introduction of copyright protection for software
- 1997 - Introduction of special protection for databases
- 2003 - “First basket” copyright reform comes into force
- 2008 - The copyright reform "Second Basket" comes into force
The baskets also contribute to Standardization of the protection of intellectual property in Europe and thus enable international copyright law.
The basics of copyright law
The copyright is based on four basic legal regulations. By complying with these, the interests of the authors are to be protected above all. These interests include, among others financial compensation for the plant and Control over further recovery. The four foundations of copyright law are made up as follows:
- The emergence of copyright through the creation of the work
Copyright protection already arises with the creation and completion of the work, i.e. even already before publication. The author does not have to register or register Protection is automatic. The situation is different with trademark or patent law, for example.
- The non-transferability of copyright
The The author remains the owner of the copyright. This can neither be transferred nor assigned to third parties by means of a contract. In addition, the copyright also remains beyond the death of the author exist and can still be claimed by heirs for up to 70 years.
- The recognition of moral rights
Through the right of publication, the author can determine himself whether and how his work is published becomes. The moral law also includes Acknowledgment of authorship, the right to prohibit the distortion of one's own work, as well as the granting of copyright rights of use.
- The author's right to appropriate remuneration
By claiming reasonable remuneration the contractual position of the authors was strengthened. So you get that Right to renegotiate existing contracts if they are unreasonably remunerated. This can be particularly important with a surprising bestseller.
What is the copyright?
Copyright is a comprehensive collection of legal norms. This includes the legal regulations for use and for Protection of the spiritual creation. At the same time, this should also ensure appropriate remuneration for the utilization of the work.
The copyright consists mainly of the Copyright Act (UrhG), the Collecting Societies Act (VGG) and the Publishing Act (VerlG) together.
The aim of copyright is cultural legal protection. This is countered by commercial legal protection, which is guaranteed, among other things, by patent and trademark law.
As relevant legal basis this applies to copyright law UrhG. This already occurred on January 01, 1966 in force and is to be adapted through reforms to the technical development as well as the changes in the handling of copyrighted works.
Below are some central aspects of the UrhG be considered more closely.
Protected works: what is copyright?
Sections 2 to 6 of the UrhG deal with the work. It can be read that from the areas Literature, science and art In particular, the following types of work are considered to be protected by copyright:
- Works of language such as written works, speeches and computer programs
- Works of music
- pantomime works including works of dance art
- Works of fine arts including works of architecture and applied arts and designs of such works
- Photographic works including works that are created similar to photographic works
- Cinematographic works including those created similarly to cinematographic works
- Representations of a scientific or technical nature, such as drawings, plans, maps, sketches, tables and plastic representations
As this list shows, in addition to literature, paintings, sculptures, music and film, other creations are also protected by copyright. Computer programs, recipes, blueprints or cards can also be added as long as they meet the requirements and count as personal spiritual creation. A clear categorization is not absolutely necessary, including the Assignment to several types of work is possible.
Depending on your own creative achievement, you can also Edits and translations fall under copyright law. A Enlargement or reduction According to the legislature, images are usually not sufficient. Should the Editing published and are used, the consent of the author of the original work is required. In some cases, this is even necessary for production.
The copyright also applies to Collected works and database works. With its judgment of May 12, 1998 (AZ 28 0 216/98), the Cologne Regional Court also classified Link collections as a database, so that copying third-party overviews of links violates copyright law. A specific number of links is not mentioned. The verdict, however, relates to a legal dispute with 251 links.
The author and his rights
The Creator of a work designated. If several people have created a work together, it is Co-author. These then share both the duties and the rights with one another.
In order for the author and his work to be protected, copyright law guarantees him certain rights. These are of particular importance Moral law and the Exploitation rights.
The moral right
Sections 12 to 14 of the Copyright Act are summarized under moral law. These include the following topics: right of publication, recognition of authorship and distortion of the work. The central aspect of moral rights is that Relationship between the author and his creation. This spiritual and personal Connection to the factory it applies to protect.
The right of publication (§ 12)
The author is in possession of the Publication right and can therefore determine whether and how his work is to be published. The right of publication refers exclusively to the Initial releasethat the work or its Content available to the public makes.
The recognition of authorship (§ 13)
Due to the Acknowledgment of authorship the decision lies in whether the work of art with a Author designation is provided by the Creator. This also defines the way in which the authorship is represented - Pseudonym, initials, full name,…
The distortion of the work (§ 14)
Does the author see his intellectual or personal interest in the work endangeredhe can do that Distortion of the work to forbid. This also applies to other types of Impairments. According to copyright law, a Deterioration or devaluation of the work counted. It is based on the principle that the author has achieved the best possible result, so one also applies possible improvement as a nuisance from the overall mental and aesthetic impression.
The exploitation rights
The author is the only person who has the right to decide in what way his work economically exploited becomes. Basic idea of Exploitation rights are the material interests of the Creator. The UrhG differentiates between the physical and the incorporeal form of exploitation.
The physical form of recovery includes in particular:
The right of reproduction (§ 16)
Because the original work is usually only accessible to a limited group of people, this should Right of reproduction ensure that the author is also rewarded for possible reproduction. According to copyright law, reproduction will take place if that Work physically fixed becomes. So if a photograph that falls under copyright law is to be copied, scanned, printed, downloaded or burned onto a CD, this must be done Author's consent and possibly one compensation. However, if the image is only viewed on a monitor, it is not a matter of reproduction.
The right of distribution (§ 17)
By the Distribution right the author alone has the right to the original as well as the reproductions to offer to the public and put into circulation. However, it is only spread if the Passed on through a physical workpiece took place.
The distribution right already applies at the preliminary stage of distribution Promotional activities. Without the permission of the author, even the announcement to a soon-to-be-released book or CD in a mail-order catalog punishable.
If the work is sold, that's that Distribution right exhausted. In the case of a rental, however, there is no exhaustion.
The right to issue (§ 18)
Whether and how the unpublished work exhibited in public the author can use the Exhibition right decide. However, this right only applies if it concerns previously unpublished originals or copies, after which it expires. In addition, it only applies to the types of work Sculpture, painting, graphics and photography.
In the incorporeal form is it a communication to the publicwhich is why the right of communication to the public is also used here. Usually this is the form fleeting or short-lived nature and includes in particular:
The right of presentation, performance and presentation (§ 19)
The right to speak relates to a public performance one protected by copyright Text. The presentation must be carried out by a natural person, whereby the use of technical aids such as microphones is possible.
Becomes a Musical work made available to the public by a natural person, this falls under the Performing right. A distinction is made whether it is a musical or a stage performance.
At musical performances becomes music only presented, as is the case, for example, at a classical concert or street music. Opposed to this is the stage performance, because this can do both perceived visually and acoustically become. Examples of this include plays, musicals and operas.
By the Right of demonstration works of the fine arts, photographic works, Cinematographic works as well as representations of a scientific or technical nature perceptible to the public. Usually come for it technical facilities such as projectors or beamers are used.
The right of making available to the public (Section 19a)
Because of the copyright, the creator has the possibility to decide whether he wants to make his works publicly accessible by wire or wirelessly. In this case, making available only means Provision for interactive retrievalwhether this service is actually used is irrelevant. The Law is technology neutral written and includes, among other things, the Internet as well as WAN and LAN networks.
The right to broadcast (§ 20)
The Broadcast right thematizes the Broadcast transmission and includes audio and television broadcasting, satellite broadcasting, cable broadcasting and similar technical means. This also includes the transmission of works on the Internet. Receive broadcasts, is in copyright freeas long as this does not take place in public. However, the author can use the right to send a Stop broadcasting.
The right of reproduction by means of video or sound carriers (§ 21)
If music from a CD is playing in the background in restaurants, department stores or supermarkets, that's it Right of reproduction by image and sound carriers affected. This is a so-called Secondary usethat requires the approval of the author. As a rule, the secondary exploitation rights are largely exercised by collecting societies.
The right to reproduce radio broadcasts and to make them publicly available (Section 22)
Analogous to the right of reproduction by video and sound carriers, the right to reproduce radio broadcasts and to make them publicly available is also a right Secondary use. Through the use of technical equipment such as screen, projector and loudspeaker, for example Broadcast television programs on a movie screen. This right is usually exercised through appropriate Collecting societies.
The usage rights
If an author lacks the opportunity to exploit his works sufficiently economically, he can give others a contract Exploitation rights grant. These are referred to in copyright law as Right of use refers to and refer to the exploitation rights listed above. In common parlance, "Licenses" spoken. However, this term is not clearly defined in legal terms, so that the use of the term “granting of usage rights” is more recommended.
The usage rights are divided into simple and exclusive usage rights. That means simple right of usethat the respective user is entitled to use the works in the manner previously contractually agreed. However, there is one more Utilization by the author or other exploiters is possible.
Several companies use the same image for one photographer Advertising purposes, they have mostly only acquired the simple right of use. In the case of short-term and regional advertisements, the higher costs for exclusive use only rarely pay off.
Would like a recycler the only one to use the plant, he can do this by purchasing the exclusive right of use guarantee. If this is granted, utilization by all persons, including the author, is prohibited.
An author clears you up publishing company the right of reproduction and distribution for his new book, it is mostly about exclusive usage rights. This prevents competition from another publisher.
There is also a restriction possible, this can be of a temporal, spatial or content-related nature.
A time limit can be valid until a certain date or a certain period of time. Due to the time limit, the user is forced to make use of his rights within a predetermined period. This applies, for example, to the right to perform Plays.
If a right of use is limited to certain countries, language areas or locations, this is called spatial restriction designated. The Publishing law is of this limitation, however exceptbecause this would restrict freedom of the press and freedom of expression.
As content restriction is the Separate allocation of the types of use to different recyclers. This is the case, for example, if a composer promises a publisher the scores he has written for exploitation (right of reproduction and distribution), but grants a collecting society the rights to exploit the performance (performance and broadcasting right).
The barriers of copyright
The author is the sole owner of the exploitation rights to his works, but these apply Rights not unlimited. In favor of the legitimate public interest there are restrictions on the works. These are also called Limitations of Copyright designated.
Copyright provides for the following restrictions, among others:
Temporary acts of reproduction (Section 44a)
When using modern technology, temporary duplication is often necessary. A short-term caching takes place in the computer, for example, through the main memory. However, § 44a also refers to the accumulated by the Internet browser Cachethat promotes faster access to websites that have already been visited. The barrier also enables that Streaming. Because so that the videos are played back as smoothly as possible, the devices temporarily store fragments of the file.
It does not infringe any other aspect of copyright, such as the use of Works from obviously illegal sources, permission-free use is permitted.
Newspaper articles and radio commentaries (Section 49)
Section 49 UrhG is also called Determination of the press review designated. This allows newspapers and the radio to print or broadcast individual contributions when they Daily questions from politics, economics or religion affect. Comments and articles on other topics are still protected by copyright. The respective Compensation claims are asserted by a collecting society.
Quotations (§ 51)
Finds through a Quote A duplication, distribution or public reproduction takes place, this is permissible if the use by a special purpose is justified. This is the case, for example, with scientific papers, if it explains the content.
In general, a quote is never alone and must be integrated into a separate work. In addition, the works cited must already be published and require one Source.
Reproductions for private and other personal use (§ 53)
Section 53 includes the so-called Private copy, one single reproduction for private use. This does not include the professional or commercial use of the copy, and it may not be distributed or used for public reproduction.
For reproduction in the form of a private copy, a Compensation necessary. This is done by collecting societies in the form of Device delivery asserted. This fee is paid both by the manufacturers of the devices for recording or transmission (DVD burner, photocopier, PC, MP3 player, ...) and by the manufacturers of the storage media (blank CD, memory card, USB stick, hard drive, ...) paid and included in the purchase price.
Duplication and communication to the public in business operations (Section 56)
To the Functions of various devices the clientele to demonstrate, companies are allowed to transfer works to storage media and play them on the respective devices. This barrier is used, among other things, in Electronics retailerto demonstrate the resolution of flat screens or the sound quality of headphones and systems.
However, this demonstration is only permitted to the extent that the Sales of the devices enabled or promoted becomes.
Works in public places (§ 59)
The reproduction, distribution and communication to the public of works that are in public places is permitted without the permission of the author. This limit is also called Freedom of panorama denotes and refers primarily to architecture, buildings and works of art such as sculptures that are protected by copyright.
The reproduction can take the form of Photographs, graphics, drawings and paintings respectively. It should be noted, however, that the illustration may only show what without tools viewed from a public place is. However, it is not permitted to depict temporary exhibitions.
Copyright and modern media
The production of so-called Filmmaking is usually associated with an enormous creative effort and sometimes high financial expenses. In addition to the big Hollywood blockbuster, you can also use the term film work Documentaries, commercials and computer games fall.
The medium of film is usually created by the Involvement of many people and professional groupssuch as screenwriters, directors, cinematographers, producers, editors, and actors. With so many contributors, the question of who is the author arises.
Existing works like the Original novel or film music fall under copyright protection regardless of the film and the respective creator holds the rights as the author. As main author of a film is mostly the Director viewed. Depending on Decision on a case-by-case basis However, other participants such as scriptwriters, cameramen or editors can also be considered co-authors.
Copyright in photos
Thanks to digital photography and cell phones with cameras, countless images are created every day that quickly find their way onto various Internet platforms. In addition to copyright, the Art copyright and the Personal rights get noticed.
The copyright applies to the Illustration of protected works. This can include parts of a building that are not open to the public or temporary exhibitions.
The Art copyright (KUG) says that a permission is necessary when Photos of people published should be. Exceptions apply, however, to public events such as gatherings, but also if the people are only of secondary importance in the depiction of landscapes or the like. In addition, there is no need for consent People of contemporary history.
The general personal rights is anchored in the Basic Law and contains that Right to your own picture. This means that everyone can decide for themselves whether, when and how pictures of them are distributed or published.
Music and Copyright
Songs are often used to convey emotions. You can also find them in videos, websites and presentations as Background music Use. However, if these pieces are protected by copyright, a Warning and result in a fine.
This also applies if your own Cover versions of a current hit can be published on video platforms without the permission of the author. As a rule, however, most rights holders and record companies do without one legal follow-up Such cover versions by fans, they can add to the popularity of the original.
Copyright on the Internet
Copyright on the Internet is constantly being confronted with new challenges and, as a rule, laws and case law can not keeping up with technical developments. For this reason, copyright has been formulated openly with regard to types of use and work, so that it also includes newer techniques and processes.
The internet allows anyone to be both legally and illegally Access to works protected by copyright and to disseminate, publish and reproduce them quickly and anonymously. All of this is mostly done with minimal or even no Loss of qualityin contrast to previous methods with cassette and video recorders.
Many internet users are probably not even aware that this violates the creator's copyright or they feel safe because of the Anonymity of the World Wide Web.
The following examples show how quickly and in some cases, of course, copyright can be disregarded:
On social media platforms, instead of your own photo, Pictures of celebrities or cartoon characters as a profile picture used. Legally, this is usually Copyright Infringement, since the rights holders are draftsmen, publishers or photographers. However, it is questionable whether large companies make the effort to punish such violations, as this can also be seen positively as free advertising.
Become foreign texts and images published on a large scale on its own website, this no longer falls under the limit for quotations, despite the sources being quoted. Because a Quote has to serve a purpose and serve as evidence or explanation of your own contribution.
A copyright infringement exists when there is a Impairment of the author's rights comes and no barrier restricts these rights. In such a case, the author can demand the following, among other things:
Copyright infringements are primarily the Disregard of previously listed Moral and exploitation rights. If there is an unauthorized reproduction or distribution, the creator can take legal action against it.
According to § 97a UrhG, the sending of a Warning for omission recommended. This gives the person responsible for the improper use the opportunity to obtain the Dispute out of court by paying an appropriate contractual penalty to clarify.
If Expectations due to a violation of copyright is checked in three stages:
- Is it really a work protected by copyright?
- Has there been a violation of the existing rights under copyright law?
- Was the infringement unlawful and does the copyright law not apply?
It only makes sense if these three questions can be answered with a “yes” Copyright Infringement Claims to assert.
However, it should be noted that the Concept of work not clearly and objectively defined is and the courts therefore examine and evaluate each creation individually. This is also one reason why plaintiffs take a high risk in copyright infringement litigation and it may be advisable to seek advice from a copyright and media law attorney.
The claims that an author can make due to copyright infringement include, among others Elimination and omission, destruction, compensation, surrender and recall. The requirements and consequences of the respective claim can be seen in Sections 97 to 101a UrhG.
Copyright - short and compact
By definition, copyright deals with the legal relationship between the author and his work. The aim of this area of law is the right to one's own creation protect and adequate financial compensation to enable.
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