Hogan Lovells

Hogan Lovells' LimeGreen IP

The site will give you an overview of Intellectual Property law and related procedures, and how these may differ from country to country.

Copyrights - Copyright protection - Germany

Overview

In every-day life, we are often faced with familiar copyright symbols including © or ®. We see them in tangible items such as books, CDs, and DVDs but also the intangible including music and software. In most cases, copyright is used by an individual or organisation to claim exclusive use of the product in question and to ensure others do not exploit it for their own use or gain.

Here we outline what copyright means in Germany and who can claim to own a copyright under German law. We look at what rights and claims stem from copyright; whether and how copyrights may be transferred and/or licensed; as well as which copyright-related rights exist. A special focus is placed on copyright in the context of the Internet. Here, information is given both on adequate protection of one's copyrights as well as liability for copyright infringements.

Frequently Asked Questions 

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-What are the works that can be protected?

Section 2 of the German Copyright Act (Urheberrechtsgesetz – UrhG) provides a catalogue of protectable types of works. The list is exemplary and non-exhaustive:

  • Literary works, such as written works, speeches and computer programs
  • Musical works
  • Pantomime works including works of the art of dance
  • Works of fine arts including works of architecture and of applied art as well as drafts of such works
  • Photographic works including such works which are created similarly to photographic works
  • Cinematographic works including such works which are created similarly to photographic works
  • Illustrations of scientific or technical nature, such as drawings, maps, sketches, tables and sculptural representations.

Generally speaking, German copyright law protects works of literature, science and art, provided such works are the intellectual creation of the author. This requires, firstly, a human creation. Although the author may use technical aids, a work which is solely created by a machine is not eligible for protection.

Furthermore, the work has to be expressed in perceptible form, which excludes mere thoughts and ideas from copyright protection. However, a permanent and physical form is not legally necessary.

The most important requirement for copyright protection under German law is the creative and individual nature of the work. The level of originality required for protection under the German Copyright Act is to be determined in accordance with the type of work.

In general, the threshold for copyright protection in Germany is rather low. So, minimal creativity – so called "small change" – is sufficient for musical works and works of fine art. Even for literary works, a small degree of originality is enough.

However, as scientific works, for instance, are pre-determined in the technical language they are written in, in case of doubt those works are not protected by copyright law.

For applied art, until lately the German courts have required a certain threshold of originality denying the principle of "small change". The reason behind this was the aim to separate the copyright protection from the registration of a design patent. However, in November 2013 the German Federal Court of Justice changed his position and set a new precedent. Today, the same standards are to be applied no matter whether or not the piece of art serves a specific purpose, e.g. as a chair, a light source or any other useful item. The reason for the change in legal perspective is seen in an amendment of the German design law which took place already in 2004. Since that year, the requirements for registering a design patent have been distinct from what is required under copyright law to successfully claim a copyright protected piece of work. Thus, there is no particular need any more to differentiate between the two IP rights by requiring  different levels of originality. Thus, nowadays the principle of "small change" also forms the standard for applied art. 

Copyright protection of a work is to be distinguished from the tangible property which is the embodiment of the work. Whereas the intellectual property in a novel belongs to the author, ownership of the printed book itself is subject to property law.


-Will the work be protected in other countries?

Copyright protection is governed by national law and as such limited to the territory of the country in question. Thus, in the first instance the individual requirements for protection as well as the term and scope of the copyright are subject to the so-called principle of territoriality.

Furthermore, it is to be determined by way of national legislation whether a non-citizen may benefit from the national copyright protection. However, numerous countries are members of international conventions which ensure the application of the commonly acknowledged and fundamental principles of copyright law in relation to non-citizens.

The underlying idea is to grant certain minimum rights to all people. In this context, the most important conventions are:

  • Revised Berne Convention for the Protection of Literary and Artistic Works (1952)
  • Universal Copyright Convention (1952)
  • Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961)
  • World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights – TRIPS (1994)
  • World Intellectual Property Organization Copyright Treaty (1996)
  • WIPO Performances and Phonograms Treaty (1996).

Germany has signed all these treaties and therefore grants and respects copyrights of non-citizens.


-What are the requirements for copyright protection?

The German copyright is not subject to any registration proceeding. In fact, copyright protection arises automatically with mere creation of the work. Thus, neither any registration nor any publication is required. Furthermore, it is not necessary to manifest the copyright protection by use of the © or ®-symbol.

The term of protection of a German copyright is set at 70 years after the death of the author of the work. This allows the author not only to ensure his livelihoods but also to pass an asset value to his successors. After the term of protection, the work is in the public domain and can be used by everyone.


-What are the author's rights under the national law?

The rights under German copyright law are divided in two groups: On the one hand the moral rights and on the other hand the property rights. The moral rights of the author have a high personal nature and include the right of first publication, the right to be acknowledged as the author and the right to the integrity of the work. The property rights granted by the German Copyright Act are the following:

  • right of reproduction
  • right of distribution
  • right of exhibition
  • right of recital, performance and presentation
  • right to make the work available to the public
  • broadcasting right
  • right to render by means of audio or audio-visual carriers
  • right of communication of broadcasts

In summary, it can be said that the author can decide whether, for what purpose and in which manner his work may be used by third persons. However, the abovementioned rights are limited by a number of regulations which serve to needs and interests of the general public. Thus, the German copyright act allows for example the use of protected works in the classroom or for purposes of news reporting. One of the most important limitations of the copyright in Germany is private use which allows a person to make copies of the work for personal usage. Some of these limitations provide a reasonable compensation for the author, other limitations the author has to accept without substitution. Furthermore, this compensation can in most cases only be claimed by Collecting Societies which represent the authors and distribute the overall remuneration among all beneficiaries.


-How do you assign copyrights / author rights?

Copyright in its entirety is non-transferable. In the event of the death of the author the copyright passes to the beneficiary. Thus, even when an employee creates a work in the course of his employment, the company will not become the owner of the copyright. However, the author can grant licenses to other persons, authorising the use of his property rights.


-How do you license copyrights?

Whereas the author cannot dispose of his moral rights, he can grant licenses or "rights of use" to an individual or a legal entity. Such rights can be exclusive or non-exclusive, limited or unlimited in time, content or territory. As regards the content of the licence, the German Copyright Act provides a rule of interpretation which assumes that the author has granted rights only to such extend as it is necessary for the purpose of the licensing agreement. Furthermore, the author can decide whether the licensee may grant any sublicenses to third parties. Against this background, the phrasing of such a contract is very important for both parties.

To ensure that the author is not put at a disadvantage – especially shortly after the creation of the work or at the beginning of his career – the German copyright law provides a number of limitations to licensing agreements. Thus, the author may ask for an alteration of the contract in case the agreed remuneration becomes inappropriate. Furthermore, a licence for unknown types of exploitation has to be issued in written form.