Copyright Law

Copyright protects works of the language, of art, of architecture, of photography and film, of music, as well as other forms of art. Furthermore, works protected by copyright include computer programs and scientific and technical representations. Copyright itself is inalienable, “just like one’s eyesight”. It is only the author who is allowed to decide whether and how his work is to be published, copied and distributed. However, the author is free to grant licence to his work to third parties for the purpose of marketability of his work. Certain personal rights to the work itself always remain with the author, though. This constitutes one of the most important differences between German and Anglo-American law.

Copyright law in the broader sense comprises also the so-called ancillary copyright, which protects other works in the area of art and science, i.e. photos which lack the necessary degree of creation, interpretations by performers and the works of music and film producers, broadcasting corporations and database compilers.

Both of these protective rights need to be properly “administered” on behalf of both authors and performers who can partly avail themselves of authors’ societies by becoming their member. In the area of music, such societies include among others GEMA (Society for Musical Performing and Musical Reproduction Rights) and GVL (Collecting Society for Neighbouring Rights), both seated in Berlin. GEMA and GVL claim licensing fees for their members when their works are performed, broadcast and published in audio and audiovisual form on a royalty basis. They distribute the amounts collected to the respective rights owners in accordance with the provisions of their distribution plan.

It is not obligatory to belong to any collecting society. No copyright or ancillary copyright can be obtained by means of membership. Each author is free to decide if he prefers to join a collecting society or to administer his rights himself. The latter usually turns out to be an organisational task which is impossible to carry out.

German Copyright and Related Rights

1. Introduction to German Copyright Law

German copyright law (Urheberrecht) is primarily governed by the Urheberrechtsgesetz (UrhG). It protects the intellectual property of creators by granting them exclusive rights over their works and ensuring fair compensation for their use. Additionally, related rights (Leistungsschutzrechte) grant protection to performers, producers, and broadcasting organizations.

2. Types of Copyright and Related Rights

2.1 Copyright (Urheberrecht)

Copyright protects the personal intellectual creations of authors in various fields, such as:

Literary works (books, articles, scripts)

Musical compositions

Works of visual arts and architecture

Films and audiovisual content

Software

Databases (under specific conditions)

2.2 Related Rights (Leistungsschutzrechte)

These rights apply to individuals and entities that contribute to the distribution and presentation of creative works, even if they are not original authors. They include:

Performers (Schauspieler, Musiker) – e.g., an actor’s performance in a film

Producers of sound recordings – e.g., music labels

Broadcasters – e.g., television and radio stations

Publishers (Press Publishers’ Right) – protecting journalistic work under Art. 87f UrhG

3. Creation and Ownership of Copyright

Copyright arises automatically upon the creation of a work. Unlike trademark or patent rights, no registration is required in Germany. The original author always holds the initial copyright, which is non-transferable except for specific exploitation rights.

4. Author’s Moral Rights (Urheberpersönlichkeitsrechte)

Under Sections 12-14 UrhG, authors retain moral rights over their works, including:

Right of publication (Ver̦ffentlichungsrecht) Рdeciding whether and how a work is published

Right of attribution (Anerkennung der Urheberschaft) – ensuring proper credit to the author

Right to integrity (Entstellungsverbot) – preventing distortion or modification that harms the author's reputation

Example Case: BGH, Urteil v. 29. April 2010 – I ZR 68/08 (”Marianne Rosenberg”)

The German Federal Court of Justice (BGH) ruled that altering an artist’s song without consent violated their moral rights.

5. Types of Usage (Nutzungsarten) and Exploitation Rights (Nutzungsrechte)

Usage rights allow third parties to exploit works through licensing agreements. These include:

Reproduction (Vervielfältigung) – copying books, music, or software

Distribution (Verbreitung) – selling or lending physical copies

Public performance (Aufführung) – live concerts, theatre plays

Broadcasting (Sendung) – television and radio transmission

Online communication (öffentliche Zugänglichmachung) – making works available on the internet (e.g., streaming services)

Example Case: BGH, Urteil v. 12. Mai 2016 – I ZR 1/15 (”Metall auf Metall”)

A legal battle over unauthorized sampling of music without licensing, affirming the producer’s related rights.

6. Limitations (Schranken) and Further Limitations (Schranken der Schranken)

Certain exceptions allow limited use of copyrighted works without permission:

Private copying (§ 53 UrhG) – personal, non-commercial copies allowed

Quotations (§ 51 UrhG) – citing excerpts for academic or journalistic purposes

Education and research (§ 60a-60c UrhG) – classroom use

Parody and caricature (§ 24 UrhG, now modified under DSM Directive)

However, Schranken der Schranken prevent abuse of these exceptions, ensuring compliance with EU directives and fair compensation to creators.

Example Case: BGH, Urteil v. 20. März 2013 – I ZR 84/11 (”Vorschaubilder II”)

Google’s use of thumbnail images in search results was deemed permissible under fair use principles.

7. Copyright Contracts (Urheberrechtsverträge) and Licensing Agreements (Lizenzverträge)

Licensing agreements regulate the transfer of exploitation rights. Key types include:

Exclusive license (exklusives Nutzungsrecht) – only one party can use the work

Non-exclusive license (einfaches Nutzungsrecht) – multiple parties can use the work

Flat-rate remuneration vs. royalties (Pauschalvergütung vs. Beteiligung)

Example Case: BGH, Urteil v. 5. Oktober 2017 – I ZR 229/14 (”Vogel-Urteil”)

A court ruling on fair remuneration for freelance journalists, emphasizing the need for appropriate contractual terms.

8. Copyright Infringement (Urheberrechtsverletzung)

Infringement occurs when someone uses a copyrighted work without authorization. Remedies include:

Injunctions (Unterlassungsklage) – stopping unlawful use

Damages (Schadensersatz) – compensating the copyright owner

Destruction of illegal copies (Vernichtung rechtswidriger Vervielfältigungsstücke)

Criminal penalties (§ 106 UrhG)

Example Case: BGH, Urteil v. 15. Januar 2015 – I ZR 148/13 (”BearShare”)

Liability of internet users for unauthorized file-sharing via platforms like BearShare.

9. Role of Copyright Lawyers (Fachanwälte für Urheberrecht)

Specialized copyright lawyers provide services including:

Contract drafting and negotiation – licensing, publishing, and distribution agreements

Litigation and enforcement – defending clients in copyright disputes

Advising on fair use and limitations – ensuring compliance with legal exceptions

Representation before courts and arbitration panels

Managing collective rights management (GEMA, VG Wort, VG Bild-Kunst)

10. German copyright law

German copyright law provides strong protections for authors while balancing public interest through exceptions and limitations. Understanding legal precedents and working with specialized lawyers ensures compliance and effective rights enforcement.