• Summary I
  
  • Summary of Recommendations

Summary I

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:

Reproduction Right:

• 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:

• The following limitations on copyright do not require revision:

  • Sec. 45, German Copyright Act (Administration of Justice and Public Safety) ;

  • Sec. 47, German Copyright Act (School Broadcasts) ;

  • Sec. 51, German Copyright Act (Quotations);

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  • Sec. 55(1), German Copyright Act (Reproduction by-Broadcasting Organisations);

  • Sec. 57, German Copyright Act (Accessory Works of Secondary Importance) ;

  • Sec. 62(1}, (2) and (4), German Copyright Act and Sec. 63, German Copyright Act (Indication of Source).

  The same applies to the claim to remuneration for rental and lending pursuant to Sec. 27(1) and (2), German Copyright Act.

• In contrast, the following provisions require clarification, amendment, harmonisation or deletion:

  • Sec. 46, German Copyright Act (Collections for Religious, School or Instructional Use), could be broadened corresponding to the purpose of the provision to include incorporation of multimedia works having small dimensions, without consent being necessary, and to include transmission of privileged collections by making them available on-line;

  • Sec. 48, German Copyright Act (Public Speeches), should be broadened to include speeches about questions of the day that are made available to the public on-line, and distribution of such speeches on data carriers could also be permitted, subject to the conditions laid down in the provision. Moreover, for the purpose of clarification the exception laid down in para. 2 of the provision should be broadened to include public communication ;

  • Sec. 49, German Copyright Act (Press Articles and Broadcast Commentaries), the group of articles, commentaries, news and news of the day listed in sub-sec. 1, first sentence and sub-sec. 2 that may be incorporated in a work without consent being necessary, should be broadened to include expressions of opinion made available on-line. It would be no problem to include digital off-line media in the incorporating media as well; as regards incorporation of such material into digital

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    on-line media, expansion of the exception to internal use for personal use would seem appropriate ;

  • Sec. 50, German Copyright Act (Visual and Sound Reporting) , should be extended to cover any kind of reporting by deleting the words "visual and sound" in the field of intangible use of works. At the same time not only reporting "by broadcast or film, " but generally speaking any kind of reporting by communication to the public - i.e. including on-line reporting - should fall under the exemption;

  • In Sec. 52(1) (Public Communication), public communication of works should exclude from the exemption the communication of works by making them available on-line; In Sec. 52(3) (Public Communication), the restriction of the exemption for certain forms of public communication should be extended to public communication by making available on-line, and the public communication of works for purely private purposes by making them available on-line should possibly be exempted from copyright;

  • In Sec. 53(1) and (2) (1) and (2), German Copyright Act, it should be clarified that digital reproduction, i.e. making of a single digital copy of a work for private use and for personal scientific use, as well as inclusion of a work in digital archives for private and personal scientific purposes is permissible without the author's consent, provided that a personal copy of the work is used as the model for the reproduction. Only personal making of copies, not making by another person should be permissible. Otherwise, digital reproduction of works - also with regard to the obligation under TRIPS to grant protection that does not prejudice the normal exploitation of the work and the legitimate interests of the author -should not fall under Sec. 53, German Copyright Act. In the interests of libraries and documentation services one may consider introducing mandatory administration of the right by collecting

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    societies if agreements are not concluded, on a voluntary basis;

  • In Sees. 54(1) and 54a(l), German Copyright Act, it should be clarified that a levy is payable for blank, recordable digital storage media and for equipment that is likely to be used to make digital copies of a work within the sense of Sec. 53, German Copyright Act;

  • In Sec. 54d(l), German Copyright Act, the reference to the amounts set out in the annex should be deleted;

  • Sec. 55(2), German Copyright Act (Reproduction by Broadcasting Organisations), should be deleted as a whole or at least as regards the archiving of lawfully made digital fixations pursuant to Sec. 55(1), German Copyright Act;

  • Sec. 56, German Copyright Act (Reproduction and Public Communication by Commercial Enterprises), should be extended to cover - if not devices for digital data processing as a whole, then at least -devices that are suitable for retrieving works made available on-line;

  • Sec. 58, German Copyright Act (Illustrated Catalogues), the restrictions to "works of visual art" and to inclusion in "catalogues" should be deleted. Further, public communication by making works available on-line should be rendered permissible without the author's consent. In return, authors could be granted a claim to remuneration which is subject to mandatory administration by collecting societies;

  • Sec. 59, German Copyright Act (Works Exhibited on Public Premises), should be extended to include reproduction, distribution and public communication of street scenes by means of digital on-line and off-line media;

  • Sec. 60, German Copyright Act (Portraits), should be broadened to the benefit of those exempted so as to include digital making available on-line - but not broadcasts pursuant to Sec. 20, German Copyright Act;

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  • Sec. 61, German Copyright Act (Compulsory Licence for Phonogram Producers), should be revoked with respect to digital phonograms as well;

  • As to Sec. 62(3) , German Copyright Act (Prohibition of Modifications), in addition to the cases mentioned in the provision, any modification entailed by the method of tangible or intangible exploitation should be permissible, provided that the legitimate interests of the author are not prejudiced thereby;

  • In addition, the scope of application of Sec. 101(1), German Copyright Act, could be extended to cover cases of negligent infringement, where the infringing party was unable to locate the injured party despite all reasonable efforts undertaken to this end, and where he put on deposit an adequate remuneration, even before commencing exploitation;

  • Finally, parallel to Sec. 69d(l), German Copyright Act, acts of reproduction that are necessary for the use of protected works in digital form by a lawful user, such use being in accordance with their intended purpose, should not be subject to the authorisation of the rights holder.

Related Rights:

• 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:

• Introduction of new statutory or compulsory licences in order to facilitate the acquisition of rights required for the production of off-line multimedia products and on-line databases is not recommended. In contrast, in certain individual cases (e.g. for publication of back numbers of periodicals on CD ROM or for digitisation of previously analogue archive material), it is recommended that administration of digital rights which have previously remained vested in the author pursuant to Sec. 31(4), German Copyright Act, be carried out exclusively by collecting societies.

• Participating circles are called upon to develop and implement solutions that contribute towards the smoothest possible legal transactions which are

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  satisfactory to all sides. Joint licensing (clearing centres) will probably play a particular role.

• Preparation of and. agreement as to the information required in order to identify works should be left to the participating circles, and the public authorities should support their development wholeheartedly.

• The issue of the legal definition of protection against circumvention should be the object of further examination and, in accordance with the WCT and the WPPT, should be regulated as fast as possible in conformance with the solutions arrived at in other countries.

Harmonisation of Laws:

• The issue of which law is applicable in case of cross-border on-line transmission merits particular attention.

• It is recommended to expand the international jurisdiction of national courts to the effect that, in cases of obvious infringement, the courts of those states in which the defendant is not domiciled and does not have a place of business, are also entitled to issue a cross-border injunction order and award compensation for the entire damage caused by an infringement that took place in several countries. These amendments should be laid down in national procedural codes, in the European Convention on Jurisdiction and Enforcement and in the Lugano Convention.

• Steps should be taken towards creating an international convention for the recognition of foreign judgements, applicable throughout the world. At the same time, within the context of the existing Conventions, it should be ensured that in practice it is faster and simpler to seek recognition of foreign decisions than to obtain a specific national decision.

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• The efforts undertaken by the EU Commission to arrive at the most uniform solution possible should be supported wholeheartedly by the German government with pertinent advice. This applies all the more since the EU will create an international model - as in the case of its legislation on computer programs and databases - and retain its role as an international pacemaker.

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The Author:

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).