Copyright

Here you will find information on the topic of copyright. What constitutes a work? Who is the author of a work, and when is the use of third-party works permitted?

These and other questions are answered below.

In this text, the terminology used in the underlying law is maintained for person designations. This means that no gender-specific terms are used unless specified by the law. Naturally, this also includes female authors and others.

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About copyright

Copyright is a broad topic that addresses questions about who may use a third-party work and in what way, as well as what other rights the creator has.

Works, as defined by the Copyright Act (UrhG), include all personal and intellectual creations. This includes articles, books, and other literary works, as well as artistic, scientific, and technical creations.

What is a personal intellectual creation?

The first criterion for a work to qualify under the German Copyright Act (UrhG) is that it must be a personal intellectual creation. This means that the work must originate from a direct creative process that reflects the personality of the author.

Additionally, the work must demonstrate a certain level of originality. At least a minimal degree of individuality and intellectual effort is required. Simple everyday products, therefore, are not eligible for copyright protection.

Key point:

Pure ideas are not protected by copyright because they lack a tangible form or implementation and, thus, a creative process. However, if an idea is written down in a specific way—such as in a plan, diagram, or similar format—it can be considered a work.

What Is protected by copyright?

All works meeting the criteria of the UrhG are eligible for protection. According to § 2 of the UrhG, these include:

  • Written works
  • Literary works
  • Computer programs
  • Musical works, pantomimes, dance works
  • Works of visual arts and architecture (e.g., buildings)
  • Photographic works and films
  • Scientific and technical representations (e.g., drawings, plans, maps, sketches, tables).

This list is not exhaustive. Other creations, including new forms like websites and podcasts, may also be protected if they meet the criteria of the UrhG.

When does copyright begin?

Copyright is established immediately upon the creation of the work, regardless of whether it is still in draft form (e.g., a manuscript) or a finished product (e.g., a book). Unlike patent or trademark rights, it does not require prior registration or application. No copyright registry exists.

Is the author always the rights holder? 

With copyright, the author acquires rights to protect the use of their work comprehensively: 

  • Moral Rights: These are directly tied to the author and cannot be transferred or waived. They include the right of attribution and the right to oppose modifications of the work. 
  • Usage and Exploitation Rights: These can be transferred via contracts, allowing third parties to distribute or reproduce the work under agreed conditions. 
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Example

An author retains the moral right to be recognized as the creator of their book. However, they may transfer exploitation rights, such as selling the book, to a publisher. In such cases, the author can no longer independently control how the content is used. 

 

What is Co-Authorship?

Co-authorship exists when multiple individuals jointly create a work (§ 8 UrhG). All co-authors have equal rights and must agree on how to exercise these rights. No co-author can independently publish or exploit the work without the others’ consent unless they have reached an agreement.

How long does copyright last?

Copyright lasts for the author’s lifetime plus 70 years after their death. For co-authored works, the term extends 70 years after the death of the longest-living author. For anonymous works, copyright ends 70 years after publication.

What are the author’s rights?

Copyright is divided into:

  1. Moral Rights:
    • Right of first publication
    • Right to be recognized as the author
    • Right to choose how to be credited (real name, pseudonym, or anonymously)
    • Right to prevent alterations of the work.

These rights are non-transferable and inseparable from the author.

2. Usage and Exploitation Rights:

    • Rights to reproduce, distribute, exhibit, perform, broadcast, or modify the work.

These rights can be transferred to third parties, often through licensing agreements.

What Is a license?

A license allows the author to transfer usage and exploitation rights to third parties, usually in exchange for compensation. Licenses can be partial or complete. Authors may also release works under open licenses (e.g., Creative Commons) for free use under specific conditions.

What are open licenses?

Open licenses, such as GNU General Public License (GPL) or Creative Commons (CC), allow for free distribution and use of works while maintaining certain conditions. Violations of these terms may result in copyright infringement.

What claims arise from copyright infringement?

If copyright is infringed, the author or rights holder may pursue:

  • Cease-and-Desist Orders: To prevent further violations.
  • Damages: Compensation for any losses incurred or a fictitious license fee if damages cannot be calculated.
  • Legal Costs Reimbursement: Recovery of costs for enforcing rights, including attorney fees.
  • Destruction/Transfer of Copies: Claim for destruction or handover of unauthorized copies.
  • Information Disclosure: To identify the source and distribution channels of unauthorized copies.

When can a protected work be reproduced?

Without explicit permission from the author, reproduction is only allowed under specific conditions:

  • Private Use: Copies must not be for commercial purposes.
  • Scientific Use: Reproduction for research is permitted, provided sources are cited.
  • Personal Use: Copies may only be made for individual purposes, not for others.

While reproduction is allowed, further distribution or public use typically requires permission.

Are there legally permitted ways to use copyright-protected works?

Under certain conditions, the law allows the use of copyright-protected works outside of contractually defined licenses:

 

 

 

Official works:

Official works, such as laws, regulations, or court decisions, can be freely used without prior consent. However, this applies only to the official work itself. For example, if legal summaries are added by a legal journal, these summaries are no longer part of the public domain and are protected by copyright.

Expired copyright:

Copyright expires 70 years after the author’s death. However, it is essential to note that third-party rights may still restrict free use of the work.

Legal limitations on copyright:

The German Copyright Act (UrhG) defines additional circumstances under which works can be used, known as statutory limitations to copyright.

Examples of statutory limitations:

Quotation rights (§ 51 UrhG):

Works can be used under quotation rights if the following conditions are met:

  • The purpose of the quote must be fulfilled (e.g., to substantiate a specific statement). There must be a clear connection between the quote and the user’s statement.
  • The quoted work must have been previously published.
  • The source must be cited.
  • The quoted work must not be technically altered.
  • The extent of the quote depends on the specific case and must be justified.

 

Teaching and education (§ 60a UrhG):

The reproduction, distribution, and public accessibility of works for teaching and educational purposes are permitted.

For more details on § 60a UrhG and its application in teaching, visit the section “Copyright in Teaching” on the relevant platform.

 

Further links:

  • The Law on Copyright and Related Rights (Copyright Act): https://dejure.org/gesetze/UrhG 
  • BeckOK UrhR/Grübler, 36. Ed. 15.10.2022
  • Dreier/Schulze/Dreier, 7. Aufl. 2022
  • HK-UrhG/Thomas Wirth, 4. Aufl. 2022

Do you have questions?

If you have questions or uncertainties, we are here to assist you as instructors.

rechtsinformation-padll[at]hwr-berlin.de