German authors' right or Deutsches Urheberrecht is codified in the Gesetz über Urheberrecht und verwandte Schutzrechte (also referred to as Urhebergesetz or Urheberrechtsgesetz and abbreviated UrhG). An official translation is available. Publication date from PDF metadata.
It should not be confused with copyright (exclusive rights to copy granted to distributors), and is more akin to authors' rights (exclusive rights to profit from one's work granted to authors).
Protection requirements Court decisions have set vastly different standards for the eligibility of works of applied art on the one hand and other types of work on the other, especially fine art. While the barrier is usually very low for fine art and protection is granted even for minimal creativity (dubbed "kleine Münze", literally "small coin" or "small change"),Fromm/Nordemann/Nordemann/Vinck, Urheberrrecht, § 2 Rn. 20; Loewenheim, Handbuch des Urheberrechts, § 9 Rn. 103 there are extremely high standards for applied art to be reached for it to achieve copyright protection.Rehbinder, Urheberrecht, Rn. 130, 131, 151 This is so because Geschmacksmuster (design patents) and Schriftzeichengesetz (typeface patents) are seen as lex specialis for applied art such that the threshold of originality must not be assumed low for them. This has been confirmed by courts several times, especially for logos, but also for earrings.
Transfer The is an authors' right () or "monistic" style law. As such there is a special emphasis on the relation between the work and its actual author.Cf. sec. 11 UrhG The right is perceived as an aspect of the author's general personality right and as a general rule is therefore inalienable. This also means that there is no corporate copyright in GermanyCf. sec. 7 UrhG and the fundamental rights cannot be transferred except by inheritance ("heritage").Cf. sec. 28 et sqq. UrhG
Licences While exclusive licences are almost as powerful as copyright transfer, the author always retains some rights to the work, including the right to prevent defacing and to be identified as the author.Cf. sec. 13 et sqq. UrhG Employment agreements are frequently construed as granting the employer an exclusive licence to any works created by the employee within the scope of their obligations. For computer software, the copyright act expressly provides that all economic usage rights (as opposed to personality rights) "belong" to the employer.Sec. 69b UrhG
A recent amendment of the Urhebergesetz (sec. 31a, included in 2008) has created the possibility to grant licences for "unknown uses", i.e. permit use of works in media not known at the time the licence is granted. Previously this had not been possible, so that even "unrestricted" licences granted before the mid-1990s did not (and could not) include the right to use the work on the internet, which created considerable practical problems.
Collection monopolies Copyright collecting societies that collect royalties as part of compulsory licensing in the European Union (EU) usually hold monopolies in their respective national markets. In Germany, case law has established the so-called , a presumption that works are managed by the Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA) due to its monopoly position. As such, in Germany the burden of proof is on the accused infringer that the work is not managed by GEMA.
EU Directive Germany has implemented the EU Copyright Directive 93/98/EEC. Parts of the Directive were based on German authors' right law in the first place, e.g. the duration of copyright term: German authors' right law had previously granted protection for 70 years after the death of the author,Sec. 64 UrhG which was the longest term of all EU member states; prior to 1965, the protection was life plus 80 years.
History According to historian Eckhard Höffner the 1710 introduction of copyright law in Great Britain and later in France acted as a barrier to economic progress for over a century, while Germany prospered in the same time frame due to the lack of copyright laws. At that time Germany did not yet exist as a unified nation; and the many states that comprised the German territories were still primarily agrarian. Copyright law was absent and not enforceable. Prussia introduced a copyright law rather late, in 1837, but even then authors and publishers just had to go to another German state to circumvent its ruling. Höffner argues that, as a result, there was a massive proliferation of books, fostering the spread of knowledge and laying the foundation for the country's eventual industrial ascendency. Comparing the English system, where copyright ruled, to the free-wheeling German situation, he notes that in 1843 about 14,000 new publications, including a high proportion of academic works, were published in Germany, compared to only about 1,000 publications in England. In England publishers exploited their position, paying authors little, while selling their products for the well-to-do. In Germany, publishers had to sell cheaply to the masses in a competitive market, aside from producing luxury editions for the wealthy. Höffner believes that the availability of bestsellers and academic works at low prices fostered a wide, educated readership; he also argues that the lack of copyright benefited the authors financially. Eventually copyright laws were enacted throughout Germany, and with unification, in 1871, such laws also became enforceable. In the meantime, Höffner contends, Britain had lost its intellectual head start on the Industrial Revolution.
The fundamentals of copyright law according to § 31 of the German Copyright Act (UrhG)
The author is the creator of their work, which enjoys copyright protection in accordance with the UrhG, §§ 7, 1, 2 UrhG.UrhG (Stand: 17. 12. 2008) Accordingly, all work resulting from a personal intellectual activity is copyright protected.Gruber, Gewerblicher Rechtsschutz und Urheberrecht, 2nd ed., Altenberge 2008, p.73
The "principle of non-transferability" of full or divided authorship according to § 29 I UrhG is valid. Therefore, the creator of an original work can neither transfer their personal right as a creator,Götting, Gewerblicher Rechtsschutz und Urheberrecht, 1st ed., Munich 2005, p.250 nor the complete rights for the exploitation of their work to others.Rehbinder, Urheberrecht, 15th ed., Munich 2008, p.199 According to §§ 15 f. UrhG the author is the only one who is able to take advantage of the exploitation rights.Rehbinder, Urheberrecht, 15th ed., Munich 2008, p.113 f.
If an author himself does not want to exploit their own work, it is possible to grant the rights of utilisation to another person. In accordance with the regulation of § 29 II UrhG (referring to § 31 UrhG) the copyright itself cannot be transferred as long as the author is alive. However, the author can choose whether or not they want to grant certain exploitation rights regarding their copyright protected work to another one.Rehbinder, Urheberrecht, 15th ed., Munich 2008, p.203 The authorised person purchases the warranty to utilise the work in the granted way, separated into several types of use.Schulze, in: Dreier / Schulze, Urheberrechtsgesetz-Kommentar, 1st ed., Munich 2004, p.452 The right of use can be granted as a non-exclusive right or an exclusive right of use. It can be granted with restrictions on spatial and temporal usage or restrictions on the exploitation concerning the contents, § 31 I 2 UrhG.
Exploitation rights and the rights of use
The copyright law protects an author regarding their intellectual and personal relationship to the work and the types of its utilisation, § 11 UrhG. According to § 11 UrhG the author shall participate in all kinds of utilisation of their work. The author’s economic interests in their work shall be protected by the exploitation rights.Ilzhöfer Patent-, Marken- und Urheberrecht, 7th ed., Munich 2007, p.203
A (not final) list of exploitation rights is presented in § 15 UrhG. The exploitation right must be distinguished from the right of use.Rehbinder, Urheberrecht, 15th ed., Munich 2008, p.199 f. The non-transferability of the authorship means that there is no way to transfer the exploitation rights on the whole. However, there is the possibility of granting certain rights of use to someone else, according to the § 31 UrhG. It is up to the author if they want to grant e. g. a publisher the right to reproduce and distribute their work.Donhauser, Der Begriff der unbekannten Nutzungsart gem. § 31 IV UrhG, 1st ed., Baden-Baden 2001, p.13
Non-exclusive right of use
The non-exclusive right of useRehbinder, Urheberrecht, 15th ed., Munich 2008, p.203 f.; Wantke / Grunert, in: Wandtke / Bullinger, Praxiskommentar zum Urheberrecht, 2nd ed., Munich 2006, p.419 f. entitles the right holder to use the work only as allowed by contractual terms and without exclusion of possible usage by a third party, § 31 II UrhG. e.g. the author can grant a non-exclusive right of using a stage play to not just one but several theatre ensembles.
Exclusive right of use
The exclusive right of use,Schulze, in: Dreier / Schulze, Urheberrechtsgesetz-Kommentar, 1st ed., Munich 2004, p.468; Rehbinder, Urheberrecht, 15th ed., Munich 2008, p.204 f.; Wantkev / Grunert, in Wandtke / Bullinger, Praxiskommentar zum Urheberrecht, 2nd ed., Munich 2006, p.419 f. entitles the right holder to use the work exclusively as allowed by contractual terms meaning no other person can be given the (exclusive) right of using a stage play to only one theatre ensemble.Rehbinder, Urheberrecht, 15th ed., Munich 2008, p.204 The right holder, however, can be given the right of independently granting non-exclusive rights of that work if the author agrees, § 31 III 1 UrhG.
Types of use The right to use a copyright protected work may cover individual or all types of use,Wantke / Grunert, in Wandtke / Bullinger, Praxiskommentar zum Urheberrecht, 2nd ed., Munich 2006, p.413 f. § 31 I 1 UrhG. The concept of "type of use" is not defined by law, and there is no list featuring possibilities of use. From the wording of § 31 I 1 UrhG (, "several or all") it can be inferred that each type of use shows distinctive characteristics.
A type of use must, thus, be clearly distinguishable from any other type of use.Reber, in Hartlieb / Schwarz, Handbuch des Film-, Fernseh- und Videorechts, 4th ed., Munich 2004, p.137 For each type of use there is consequently a corresponding right of use. If there are several types of use in connection with their work, there will be, in proportion, various rights of use the author can grant.Schulze, in Dreier / Schulze: Urheberrechtsgesetz-Kommentar, 1st ed., Munich 2004, p.453 The types of use have changed and evolved in the course of technical development and they still continue to do so.Schwarz / Reber, in Hartlieb / Schwarz, Handbuch des Film-, Fernseh- und Videorechts, 4th ed., Munich 2004, p.688 f.; Reich, in Fischer / Reich, Der Künstler und sein Recht, 2nd ed., Munich 2007, p.51 f. The term "kind of use" refers to "all technically and economically concretised utilisation of an author's work,Donhauser, Der Begriff der unbekannten Nutzungsart gem. § 31 IV UrhG, 1st ed., Baden-Baden 2001, p.14 meaning that the parties to a contract have specified the use of the work as required for achieving the contractual purpose.Cf. BGH, Urt. v. 05.06.1985, I ZR 53/83 - GEMA-Vermutung I (NJW 1986, p.1246)