International copyright law

Copyrights apply and are effective also internationally. This follows the principle of territoriality and the so-called “Lex loci protexionis”. Copyright infringements are ruled by the laws of the respective country. The national rules of this state determine the development, content and scope of the copyright. The author receives a copyright only in the respective state in which it exists according to its regulations. Foreigner’s provisions may differ from the national ones. If, for example, a copyright infringement is asserted in another state before a German court, then it must also be stated how this copyright has been created and infringed in regards to the legal ordainments of the state. The German court therefore has to apply the law of the foreign state (because of the “lex loci protexionis” principle).

Is there an internationally recognized copyright? 

No; instead, there is a large number of international copyright agreements, such as the Berne Convention (RBC or RBÜ, as it is called in Germany) of 1886 and the TRIPS of 1994; both are actually the most important international copyright agreements. The WIPO Copyright Treaty (WCT) also represents one of the most important international agreements. This regulates copyright´s matters in order to keep the RBC up to date. The WIPO Performances and Phonograms Treaty (WPPT) covers related rights of performers and phonogram producers separately. 

What does the Berne Convention regulate? 

The Berne Convention (Berne Convention for the Protection of Literary and Artistic Works) was last updated in 1979. Accordingly to Article 5 of the RBC, each Contracting State must recognize the protection of works of its own citizens. However, this has the consequence that the foreign author can be entitled to different rights in the different country, as these are differently regulated in the respective target states (contrary to the “lex loci protexionis” principle).  Nowadays, about 158 states have joined the RBC. Subsequent international agreements generally allow the RBC to be considered at least “supplementary” to the state territorial provisions.

What does the TRIPS include?

The TRIPS is an annex of the WTO provisions. Any State that wants to join the WTO must also ratify TRIPS.  Currently, the WTO and TRIPS have about 149 members. However, copyright is not the only aspect that is regulated by these agreements; they also concern the basic features of a free trade economy, while maintaining all IP rights, including in particular the technical property rights and ancillary copyrights. In addition, the member states may develop their own fundamental limits of protection.

Which effect do international agreements have?

Just like any simple contract, international agreements only work between the contracting parties, in this case, the countries that have signed them.

German copyright law

What is a copyright?

Copyright is an exclusive right to copy a literary, musical, artistic or other original. The usual prerequisite for a copyright is a personal intellectual creation. Protection covers works of literature, science and art. These include sound recordings, pictures and performances of an artist as well as e.g. software. As far as the latter is concerned, however, there are special regulations within the Copyright Act. The contents of a domain can be protected by copyright. This does not regard the software the contents are created with, but the way the website is presented.

The term “copyright” does not, however, comprise all aspects of what copyright means. The protection offered does not only deal with the legitimacy of a copy. Similarly, public performance, distribution, translation, alternation and so on of the work as a whole or any substantial part of it are also protected. Furthermore, when looking at them in detail, there are differences between Anglo-American copyright law and its German counterpart, the “Urheberrecht”, which is often referred to by the English term. (Differences include, especially, the so-called personality copyright in German law, which is not transferable, the way in which employees’ inventions are treated, etc.).

What can be protected by a copyright?

A copyright protects personal intellectual creations from numerous areas such as literature, drama, music, art, architecture, film and others. Scientific representations are also protected, i.e. sketches, plans, maps and drawings. A personal intellectual creation requires the so-called degree of creation (whereas in the Anglo-American law merely “skill and labour” are expected). It is impossible to handle the question schematically whether this degree of creation exists; even courts decide variously on this matter.

Copyright can also apply to software. So called accomplishments protection rights (not relating to law on competition) are regulated in the Copyright Act as well and concern e.g. databases.

What cannot be protected?

Ideas as such are not protected, neither by copyright, nor in any other way, according to the principle that “thoughts are free”. It is only a concrete expressive form of an idea that can obtain protection by copyright. An author of a book on German history might have copyright protection for his book. He cannot, however, prohibit the “idea” of a work on German history. Similarly, a person who converts a certain idea of an internet company into reality by means of a personal intellectual creation enjoys protection by copyright for the homepage thus created. The idea as such can be used otherwise, though.

Protection by copyright does not usually cover the title (title protection is possible under trademark law), names, slogans (still disputable) and similar short terms. Mass articles of average „originality” are not protected, either, due to an insufficient degree of creation.

What is the duration of a copyright?

A copyright is usually effective during the lifetime of the author and 70 years after his death. In case of joint authorship the author who lives longest is decisive.

How is a copyright obtained?

In Germany, just as in many countries nowadays, protection by copyright is guaranteed automatically, when the legal requirements are fulfilled. Entry in the register is not necessary and no official fees must be paid (it is in principle recommended to deposit a work as evidence for the purpose of proving authorship).

Are copyrights transferable?

Exploitation rights are in principle transferable. „Copyright” cannot, however, be sold, since the so-called personality copyright remains always with the author.

As far as the transfer of exploitation rights in favour of the author is concerned, the Copyright Act assumes that in case of doubt he will only transfer what is necessary in order to comply with the contract (purpose transfer theory).

As far as the granting of exploitation rights is concerned, so-called licences play a central role, which cover a wide range of legal, factual and financial regulations.

An author owns his “words” and not his “books”.

Authorship is not synonymous with ownership. An author of a book has an intangible (intellectual) right to it. This means that illegal copies of a book do not “belong” to its author. Nonetheless, he can enforce their destruction.

What is the relevance of the copyright notice?

Such an indication is recommended on every piece of work which is suitable for it, since it leads to a so-called shift in the burden of proof. This means that it is not the author of the work labelled with such a notice, but the third party, who has to prove authorship.

German media law

What does „media law“means?

Media law as a separate legal area in the form of a single Act or even systematically from a legal view of ordered norms is not legally relevant in itself. The “Media Act” came from the former “new media” (BTX, modem, cable transmission, etc.). The term is still sector-oriented to the present, but encompasses both classical and “new” forms of media. As lawyers specialized in media law, we deal with the areas of classical media law, such as broadcasting law, broadcasting licenses rights, mechanical and performance rights, publishing rights, telecommunications law, but also all adjoining legal areas such as copyright, press law, film law, music law and data protection law. Of course, the focus is on aspects of new media such as eCommerce, eGovernment, ePayment (such as bitcoins), cloud computing or sales platforms such as iTunes or Amazon / eBay as well as the use of personal protective rights or third party rights, or third party websites, distribution platforms for media content and, in general, competition and antitrust law.

Where are „media law” regulated?

“Media law” is initially standardized in media-specific regulations such as state press laws, broadcasting laws, broadcasting agreements, telecommunications law, tele-media law, etc. However, the branch approach leads to the fact that media law also includes neighbouring legal areas with media references such as, for example, competition law, copyright, trademark law, publishing rights, anti-protection legislation, etc.

Media Law foundations using the Lower Saxony´s regulation as example:

The media enjoys special protection under Article 5 of the Basic German Law (Grundgesetzt). There is a very comprehensive basic right of freedom of opinion and press, which clearly shows the limits of state influence. On the other hand, it is not to be overlooked that media have a great influence. They inform, entertain and represent opinions. Media does not only represent reality; they also shape the reality in which we live. In view of the strong position of the media in our information society and its high socio-political importance, it is necessary – within the limits of Article 5 – to regulate and correct, if necessary, the media law system.

The legislative competence for those above-mentioned broadcasting laws depends on the German regions (Länder). To ensure that there are no 16 different regulations for the nation-wide electronic media (radio, television and online services), the regions have agreed in state treaties on federal legal bases. Thus, there are a number of different broadcasting state contracts (for example, the ARD State Treaty, the ZDF State Treaty, the Broadcasting State Treaty). In Lower Saxony, we also have the Lower Saxony Media Act for nationwide and regional private broadcasting. It regulates the organization of broadcasting of private broadcasters, media services in cable systems and the allocation of transmission capacities. The supervisory authority for private broadcasting is the Niedersächsische Landesmedienanstalt (NLM).

The legal basis for the activity of the Norddeutsche Rundfunks (NDR) is regulated in the NDR-Staatsvertrag. The NDR is a public service broadcasting corporation and is supported alongside the states of Lower Saxony, Hamburg, Mecklenburg-Vorpommern and Schleswig-Holstein. The Broadcasting Council has the program supervision on the NDR. The Lower Saxony Press Act applies to the area of the so-called print media (primarly newspapers and magazines). This includes, for example, the right to information and the due diligence of the press, the requirements for an imprint (Impressum), and the right to a regional representation.