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3. Point of Departure: Copyright and Protection of Creative Acts

Before moving on to the problems and need for adaptation entailed in the sphere of copyright law by the new technologies of digitisation and networking, it is first advisable to outline the basic principles of copyright law.

3.1. Copyright as an Exclusive Right

Copyright is the right to which the creator of a literary, scientific or artistic work is entitled in his or her

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immaterial, i.e. intangible work; the catalogue of works ranges from text via sounds and images to embrace computer programs and databases. Comparable with a property right in a material object, copyright has been structured by the legislature as a so-called exclusive right. Hence, it is solely for the creator of a work to decide whether - and if then in which manner - he or she wishes to exploit the work and who should be excluded from such exploitation.

The copyright in an immaterial, i.e. intangible, work should not be confused with the property right in the material carrier medium in which the intangible work is embodied (namely the paper of a book, the plastic of a CD ROM, etc.). A person who buys a copy of a book acquires the property right in the carrier of the work, yet without a specific agreement to this end he or she does not acquire any copyright entitlement in the content of the book. Hence, the purchaser may do what he likes with the book itself, yet he may not reproduce the content of the book he owns as property beyond the provisions of the limitations on copyright (see for further details point 4.5), nor may he use the content for any other kind of public communication.

The exclusive rights granted to the creator of a work by law (so-called exploitation rights) are anchored in detail in Secs. 15 et seq. of the German Copyright Act. According to these provisions, the creator is entitled to exploit his or her work in tangible form (essentially by reproduction and distribution of the copies thus obtained) or in intangible form (by any kind of communication to the public, whether live, with the use of videos and phonograms or by broadcasting). If the creator permits a third party to exploit the work, he or she may in return demand payment of a remuneration and thus participate in the profits of the exploitation of the work. The aim of the remuneration is to compensate the creator for the efforts he made in order to create the work and, in addition, to enable him to make a profit. In other words, the purpose of the exclusive right is to stimulate creators to create works that have a commercial value. It is for this reason that not each and every work attracts protection, but only works that are individual and have sufficient creativity (or: originality); material that

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does not fulfil this criterion, e.g. mere data or information, is not protected by copyright. It may be used freely, provided that such use does not amount to the unauthorised appropriation of substantial parts of a database which required substantial investments, or to conduct deemed unfair under competition law.

Of course, the exclusive rights conferred on creators are subject to certain limitations and exceptions. The interest of authors in controlling as far as possible the exploitation of their works is set against the interest of the general public in being able to use protected works under certain circumstances and for certain purposes (education; freedom of private use; criminal proceedings etc.), without the consent of the author and, in some cases, without having to pay remuneration. The so-called limitations on and exceptions to copyright take these interests into account. The balance of the individual interests of the creator and of his or her heirs against those of the general public is also the reason behind the limitation in time imposed on copyright. Contrary to proprietary rights in material objects, copyrights do not last forever, but expire throughout the EU 70 years after the author's death (Sec. 64, German Copyright Act).

3.2 Ideal and Material Interests

Copyright law protects not only the material interests of an author in his or her work, it also protects his or her "intellectual and personal relations to the work [Fn. 2: Sec. 11, German Copyright Act] , in short, his or her ideal interests.

These interests include the right of first publication of the work, the right to be identified as the author and the right to the integrity of the work (the right to prevent distortion or mutilation of the work) (Sees. 12 et seq., German Copyright Act). Violation of the latter right takes place where a work is altered in a manner likely to prejudice the legitimate personal interests of the author, or where the work is placed in a context that gravely conflicts with author´s intentions.

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The "spiritual ties" linking the author to his or her work continue to exist after assignment of the exploitation rights to the work; the central core of such "ties" is deemed to be unassignable and unwaiveable (see in further detail point 4.3). This concept is reflected in other copyright provisions, e.g. the right to revocation by reason of changed conviction

(Sec. 42, German Copyright Act); in the provision requiring the author's consent for the re-assignment of a licence by the licensee or where the licensee wishes to grant a non-exclusive license (Secs. 34, 35, German Copyright Act); in the prohibition on altering the title of the work, the designation of the author or the work itself by the licensee, provided that the author does not abuse this right (Sec. 39, German Copyright Act), and finally in the prohibition on modification of the work (Sec. 62, German Copyright Act) and in the obligation to indicate the source where a work is reproduced (Sec. 63, German Copyright Act), if use of the work is permitted without the consent of the author on the basis of one of the limitations on copyright anchored in Secs. 45 et seq., German Copyright Act.

3.3 Authors and Related Rights Holders

In addition to authors, other natural and legal persons who engage in activities within the culture business also enjoy legal protection (Secs. 70 et seq., German Copyright Act). These activities are of a performing or interpreting nature, e.g. in the case of performing artists, or - e.g. in the case of phonogram producers, broadcasting companies and film producers - of a commercial, organisational nature. Under German law, authors of scientific editions, publishers of posthumous works and photographers of photographs that do not fulfil the originality criterion required for protection as photographic works also enjoy protection under related rights. Protection of related rights is not as extensive as that afforded by copyrights proper; in particular, the term of protection runs for 50 years after the first public communication or after the creation of the work, if publication does not take place during that period, and is thus shorter than the term of protection afforded by copyright proper.

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These related (or neighbouring) rights must also be taken into consideration when analysing the implications of digital technology for the exploitation of protected works and achievements. In this respect, the interests of the individual groups of related rights holders are frequently - but by no means always - identical. Certain conflicts of interest arise particularly in relations between the individual creator of a work or the individual performer and the publisher or producer, although both groups do pursue the same interests vis-à-vis those exploiting works and end users.

© Friedrich Ebert Stiftung | technical support | net edition fes-library | Juli 1999

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