SECTION of DOCUMENT:
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Summary of Recommendations
In the digital environment, copyright law will prevail as an essential instrument of cultural and economic control. Consequently, it is not necessary to develop a completely new model of categorising property in the digital context. Rather, the task is to pinpoint the lacunae, legal uncertainties and inappropriate effects of the current Copyright Act within the digital context and to craft corresponding solutions to these problems.
Protection of Multimedia Works:
- Digitisation as such does not attract protection to the benefit of a person or entity who merely digitises analogue material.
- It is necessary to point out that data carriers also fall within the definition of videograms and phonograms.
- It would be advisable to clarify in legislation that a work can consist of the combination or merging of works; this would ensure that the prerequisites for protection are not examined separately but in relation to the multimedia work as a whole. However, it would not be advisable to equate all multimedia works with the existing category of cinematographic works.
Ownership of Rights:
* A change in the original authorship is not advisable, nor is an extension of the existing presumptions of the assignment of rights. Instead, it would be advisable to take into account the legitimate interests of the copyright industry by facilitating acquisition of rights in practice and the interests of lawful users of digital
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works by Grafting corresponding limitations on copyright similar to Sec. 69d(l), German Copyright Act.
Moral Rights of the Author:
- It would be advisable to determine precisely the prerequisites of legal transactions concerning permission to modify works and other impairments of authors' ideal interests. Individual, precisely described alterations, even those of a drastic nature, should be rendered permissible. Yet blanket agreements should remain prohibited. This solution does not require a legal presumption or changes to authors' preventive powers deriving from moral rights.
Exploitation Rights of the Author:
- Digitisation, input, storage and printing of protected works all constitute independent acts of reproduction under the law currently in force. Hence it is not necessary to amend Sec. 16(1), German Copyright Act, in this respect (the same applies to Sec. 23, German Copyright Act, as regards adaptations).
- In contrast, with regard to all works in digital form, it should be clarified in Sec. 16(1), German Copyright Act - parallel to Sec. 69c(l), German Copyright Act, and Art. 5 (a) of the Database Directive - that temporary reproduction of such works does fall under the exclusive reproduction right; yet purely technical acts of reproduction should not fall within this right.
Right of Communication to the Public:
- The right to make protected works available for delayed (interactive) access via digital networks should not be granted through analogous application of the right of
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material distribution or by applying the rental and/or lending right.
- Rather, it is recommended to list this right as a sub-category of the right of intangible communication in a special paragraph of Sec. 15(2), German Copyright Act; this would distinguish the right from the broadcasting right (Sec. 20, German Copyright Act) and from the rights of making available using technical means (Sees. 19(3) and (4), 21 and 22, German Copyright Act). The right could be called a "right of intangible transmission" or "right of intangible making available" or simply a "transmission right." The contents of the right would be described as "the right to make available to the public protected works, by wire or wireless means, in such a way that members of the public may access them."
- In addition, it is recommended to revise the meaning of the term "public" laid down in Sec. 15(3), German Copyright Act with respect to all kinds of public communication of a work; the revised wording could read as follows: "The communication [of a work] shall be public if it is intended for one or a number of persons that belong to the public. It shall not be public if personal relations exist between the person or persons and the organiser."
- It will remain the task of case law to clarify when an individual person or a number of persons belong to the public in an individual case.
Limitations on and Exceptions to Copyrights:
- In conformance with the new WIPO Treaty (WPPT) , performing artists should be granted a right to identification and a broad right of integrity. The right should not be limited to fixations in phonograms.
- In addition, going beyond the provisions of the WPPT, not only performing artists and phonogram producers, but all those entitled to related rights protection under the German Copyright Act should - like authors - be granted an exclusive right to make their performances and/or achievements available on-line.
- Performing artists and phonogram producers should be granted an exclusive right with respect to digital multi-channel services; as regards traditional radio
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broadcasting, the previously applicable remuneration rule can remain unchanged.
- Finally, it is recommended to mention explicitly protection against appropriation of parts where such appropriation impairs the commercial exploitation of the subject matter or performances from which the parts were taken.
Liability for Copyright Infringements:
- The currently applicable, general principles of liability still appear appropriate in the digital environment. In view of the loss of control on the part of rights holders, it is not advisable to reduce liability; in particular, liability for damages in case of intentional infringement and liability to cease in case of individual infringements should not be revoked. However, one may consider excluding from liability slight negligence on the part of persons who are merely concerned with transmitting contents that infringe copyright.
Copyright Contract Law:
Harmonisation of Laws:
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Dr. Thomas DREIER, M.C.J.; senior researcher at the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law, Munich; co-author of the study "Urheberrecht auf dem Weg zur Informationsgesellschaft" , commissioned by the German Federal Ministry of Justice (Nomos Verlag, Baden-Baden 1997).
© Friedrich Ebert Stiftung
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fes-library | Juli 1999