In the following, German copyright law will be briefly explained using the example of music.
1.) Author
According to Section 7 UrhG, the author is the creator of the work. In music, a distinction is made between the composer and the lyricist. These can be different persons, but often it is only one person who composes a song melody and writes the lyrics to it.
2.) Work
If a song is a personal intellectual creation, it is called a work (§ 2 UrhG). It does not have to be absolutely new (so-called “double creation”), but as a rule a certain individuality is required. This means that the work must stand out from the mass of the everyday. The requirements in the popular music sector are not very high here; the so-called “protection of small coins” applies.
3.) Origin and duration of copyright
Copyright arises with the creation of the work. Therefore, no formalities are necessary, such as
registration. According to Section 64 UrhG, copyright expires 70 years after the death of the author, so it is heritable.
4.) Work protection
There are several ways to protect your songs. However, this does not prevent someone from using a work without authorisation. Rather, work protection serves to prove authorship in the event of a legal dispute.
a) Sending by e-mail
Many artists send their own songs to themselves by e-mail. This is by far the cheapest option, but in the event of a serious case the evidentiary value is low due to the many possibilities of manipulation.
b) Sending by registered mail
It is also comparatively cheap to send yourself a data carrier (e.g. CD-Rom) with the songs copied on it in a sealed envelope by registered mail with advice of receipt. The value of the evidence is somewhat higher, but the songs are not protected against loss.
c) Internet providers
In the meantime, there are also many providers on the Internet who offer song protection. One example is www.songprotection.org, which, according to its own information, works together with legal authorities (i.e. lawyers).
d) Deposit with a lawyer / notary
A deposit with a lawyer or notary is the most expensive option, but in the event of an emergency it has the highest probative value in court.
5.) Difference between co-authors and processors
The co-authors (Section 8 UrhG) create a work jointly. The arranger (Section 3 UrhG), on the other hand, changes an already existing work. This distinction is important for GEMA registration, among other things.
6.) Adaptation / Free use / Quotation / Plagiarism
a) Adaptation
An adaptation is a transformation of a work which is itself creative. A copyright is therefore also created in the adaptation. According to Section 23 UrhG, the consent of the author of the adapted work is required if the adaptation is to be published. Thus, anyone may adapt a copyrighted work without permission as long as he or she does not publish the adaptation.
b) Free use
The opposite of adaptation is free use under Section 24 UrhG. A use is free if “in view of the peculiarity of the new work, the borrowed personal features of the protected work fade away”. Example: Transfer to another artistic genre, e.g. pure setting of a linguistic work to music. However, according to Section 24 (2) UrhG, the so-called “rigid melody protection” applies. This means that the melody may not be recognisably taken from a used work.
c) Quotation
A quotation is when individual passages of a musical work are used in another musical work (Section 51 No. 3 UrhG). It must be made the subject of an intellectual discussion. The prerequisite is therefore that the quoted work itself is eligible for copyright protection; a mere adoption of foreign parts of a work is no longer covered by the freedom to quote. Individual passages may be quoted in music, but not too often. Thus, the constant repetition of a foreign melody sequence is no longer permissible, as the scope required by the purpose is exceeded.
d) Plagiarism
Plagiarism is the altered or unaltered copying of a copyrighted work or part of a work while claiming authorship.
7.) Barriers to copyright.
The most important limitations are: Freedom of citation (see above), gratuitous public reproduction (e.g. at social events) as well as reproductions for one’s own private or scientific use (Section 53 UrhG). In the case of reproduction, the author receives remuneration, which is collected through the levy on devices and blank media. In the case of private copying, no effective copy protection mechanisms may be circumvented without the consent of the right holder (Section 95a UrhG). The exact number of private copies permitted is not specified by law and is therefore disputed.
8.) The performing artist
In music, a performing artist is the person who performs a work. This can be either live on stage or in the studio. According to §§ 73 ff. UrhG, the performing artist also has his or her own rights, the so-called ancillary copyrights. These include the right to record his or her performance on visual or audio media and the right to exploit these recordings (Section 77 UrhG). According to the revised Section 82 UrhG, which entered into force on 1 November 2013, neighbouring rights expire 70 years after publication or performance (previously: 50 years). Pursuant to Section 79 UrhG, large parts of the regulations for authors regarding the granting of rights are to be applied accordingly to performing artists.
9.) Record producer
The producer of records has his own rights, for example, according to § 85 UrhG he is entitled to the exploitation rights in the phonograms produced by him. These rights also constitute neighbouring rights. If a band records songs in a studio at its own expense, it is also a producer of phonograms in the legal sense.
10.) The rights of the author
The author has both moral rights and exploitation rights.
a) Moral rights
This means the protection of the moral interests of the author. The moral rights always remain with the author. These are mainly regulated in §§ 12 – 14 UrhG:
- § 12 UrhG: Right of publication
- § 13 UrhG: Recognition of authorship
- § 14 UrhG: (protection against) distortion
b) Exploitation rights
In contrast to moral rights, exploitation rights may be granted to third parties. The following exploitation rights are of importance to the author of music:
- § 16 UrhG: Right of reproduction (e.g. reproduction of CDs)
- § 17 UrhG: Right of distribution (e.g. sale of cds)
- § 19 UrhG: Right of performance (e.g. concert performance)
- § 19a UrhG: Right of making available to the public (e.g. offering on online platforms)
- § 20 UrhG: Broadcasting right (e.g. broadcast by radio or television)
- § 20b UrhG: Cable retransmission (e.g. television broadcast is retransmitted by companies such as Kabel Deutschland through the German cable network)
- § 21 UrhG: Right of communication by means of visual or audio carriers (e.g. playing Cds at public events)
- § 22 UrhG: Right of reproduction by radio broadcasting and by making available to the public (e.g. playing music in public places such as department stores etc.)
11.) Purpose transfer doctrine
According to Section 31 (5) UrhG, the so-called “purpose transfer doctrine” applies. This means that the scope of the right of use is determined by the purpose intended by the contractual grant if the rights of use are not individually designated. In case of doubt, the rights remain with the author.
12.) Fairness Clause
Under Section 32a UrhG the author is entitled to fair remuneration if the agreed consideration is conspicuously disproportionate to the income and benefits derived from the use of the work.
13.) Claim in case of infringement
In the event of an infringement of copyright, the right holder may, pursuant to Section 97 UrhG, claim removal and injunction of the infringement as well as damages. Fault is not necessary for the claim for removal and injunction. Damages, on the other hand, can only be claimed if the infringement was unlawful and culpable. The amount of damages is usually calculated according to the licence analogy.
