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Intellectual Property Law

Sven Jacobs
Associate
Norton Rose Fulbright (Germany) LLP
8. 9.12.2016

Copyright

History of Copyright
Ancient times
Invention of letterpress printing

System of privileges for authors


Statute of Anne (1710)
France (1791 und 1793); USA (1795); Prussia (1837); Germany
(1871)

Berne Convention (1886)


German Copyright Act (1965)
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History of Copyright

Justification of Copyright Protection


Individualistic justification
Collectivistic justification
Economic justification

Creator

User

Distributor

Protected Works
Section 2 subs. 1 Copyright Act list works protected by the
Copyright Act.
However, pursuant to Section 2 subs. 2 Copyright Act only the
author's own intellectual creations constitute works within the
meaning of the Copyright Act.

Protected Works
Literary works, such as written works, speeches and computer
programs

Protected Works
Musical works and pantomimic works, including works of dance

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Protected Works
Artistic works, including works of architecture and of applied art
and drafts of such works

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Protected Works
Photographic works, including works produced by processes
similar to photography

Protected Works
Cinematographic works, including works produced by processes
similar to cinematography

Protected Works
Illustrations of a scientific or technical nature, such as
drawings, plans, maps, sketches, tables and three-dimensional
representations.

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Protected Works
Collections of works, data or other independent elements which
by reason of the selection or arrangement of the elements
constitute the author's own intellectual creation (collections) are
protected as independent works without prejudice to an existing
copyright or related right in one of the individual elements (Section
4 subs. 1 Copyright Act).
A database work within the meaning of this Act is a collection
whose elements are arranged systematically or methodically and
the individual elements are individually accessible by electronic or
other means (Section 4 subs. 2, Section 87a et seq. Copyright
Act).
Computer programs (Section 2 subs. 1 no. 1, Section 69a et
seq. Copyright Act)
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Protected Works
Related rights sec. 70 95 Copyright Act (neighbouring rights):
Protection of photographs (sec. 72 Copyright Act)
Protection of performers (sec. 73 et seq. Copyright Act)
Protection of producers of audio recordings (sec. 85, 86 Copyright
Act)
Protection of publishers of newspapers and magazings (sec. 87f
Copyright Act)
Special provisions on films (sec. 88 95 Copyright Act)
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Threshhold of Originality
Under German copyright law there is a required threshold of
originality (creativity) regarding the eligibility of creative works.
To be granted protection pursuant to the Copyright Act a work
disinguish itself from a trivial or ordinary creation.
While the barrier for fine art is usually low (Kleine Mnze) and
protection is granted for even minimal creativity, for applied art
higher standards are to be reached to achieve legal protection.
This is due to the fact that design patents are seen as lex specialis
for applied art, hence the different threshold regarding originality.

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Threshold of Originality

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Duration
Sec. 64 Copyright Act:
Copyright expires 70 years after the authors death.

Sec. 65 subs. 1 Copyright Act:


Where several joint authors hold copyright in a work, it expires 70 years after
the death of the last surviving joint author

Sec. 66 subs. 1 Copyright Act:


Copyright in anonymous and pseudonymous works expires 70 years after
publication. It shall, however, expire 70 years after the creation of the work if
the work was not published within this period.

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Scope
Sec. 11 Copyright Act:
Copyright protects the author in his intellectual and personal
relationships to the work (moral rights) and in respect of the use of
the work (exploitation rights). It shall also serve to ensure
equitable remuneration for the exploitation of the work.
However, mere ideas are not protected pursuant to the Copyright
Act.

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Scope
Moral rights:
Right of publication (sec. 12 Copyright Act)
Recognition of authorship (sec. 13 Copyright Act)
Distortion of work (sec. 14 Copyright Act)

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Scope
Exploitation rights grant an author the exclusive right to exploit his
work in material and non-material form:
Right of reproduction (sec. 16 Copyright Act)
Right of distribution (sec. 17 Copyright Act)

Right of making works available to the public (sec. 19a Copyright


Act)
Right of broadcasting (sec. 20 Copyright Act)

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Scope

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Scope
Principle of exhaustion (right of first sale):
Where the original or copies of the work have been brought to the
market by sale with the consent of the person entitled to distribute
them within the territory of the European Union or another state
party to the Agreement on the European Economic Area, their
dissemination shall be permissible, except by means of rental (sec.
17 subs. 2 Copyright Act; see also sec. 69c no. 3 s. 2; 87b subs. 2
Copyright Act).

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Transfer
Copyright is not transferrable, unless it is transferred in execution
of a testamentary disposition or to co-heirs as part of the partition
of an estate (sec. 29 subs. 1 Copyright Act).
The author may grant a right to another to use the work in a
particular manner or in any manner (exploitation right). An
exploitation right may be granted as a non-exclusive right or as an
exclusive right, and may be limited in respect of place, time or
content (sec. 31 subs. 1 Copyright Act).

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Transfer
The author shall have a right to the contractually agreed
remuneration for the granting of exploitation rights and permission
for exploitation of the work. If the amount of the remuneration has
not been determined, equitable remuneration shall be deemed to
have been agreed. If the agreed remuneration is not equitable, the
author may require the other party to consent to a modification of
the agreement so that the author is granted equitable remuneration
(sec. 32 subs. 1 Copyright Act).

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Transfer
If the types of exploitation have not been specifically designated
when an exploitation right was granted, the types of use to which
the right extends shall be determined in accordance with the
purpose envisaged by both parties to the contract. A corresponding
rule shall apply to the questions of whether an exploitation right has
in fact been granted, whether it shall be a non-exclusive or an
exclusive exploitation right, how far the exploitation right and the
right to forbid extent, and to what limitations the exploitation right
shall be subject (sec. 31 subs. 5 Copyright Act).

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Limitations
Limitations on copyright are governed in sec. 44a 63a Copyright
Act.
Temporary acts of reproduction (sec. 44a Copyright Act)
Newspaper articles and broadcase commentaries (sec. 49
Copyright Act)
Quotations (sec. 51 Copyright Act)
Reproduction for private and other personal uses (sec. 53
Copyright Act)

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Limitations
Quotations (sec. 51 Copyright Act):
It shall be permissible to reproduce, distribute and communicate to
the public a published work for the purpose of quotation so far as
such exploitation is justified to that extent by the particular purpose.
This shall be permissible in particular where
subsequent to publication individual works are included in an
independent scientific work for the purpose of explaining the
contents,
subsequent to publication passages from a work are quoted in an
independent work of language,
individual passages from a released musical work are quoted in
an independent musical work.
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Limitations
Reproduction for private and other personal uses (sec. 53
subs. 1 Copyright Act):
It shall be permissible for a natural person to make single copies of
a work for private use on any medium, insofar as they neither
directly nor indirectly serve commercial purposes, as long as no
obviously unlawfully-produced model or a model which has been
unlawfully made available to the public is used for copying.

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Anti-Circumvention Law
Protection of technological measures (sec. 95a subs. 1
Copyright Act)
Effective technological measures to protect a work protected under
this Act or other subject-matter protected under this Act may not be
circumvented without the consent of the rightholder where the
person acts in the knowledge or with reasonable grounds to know
that circumvention is taking place in order to facilitate access to
such a work or protected subject-matter or its exploitation.

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Anti-Circumvention Law
Protection of technological measures (sec. 95a subs. 3
Copyright Act)
The production, import, distribution, sale, rental, advertising with a
view to selling or rental and possession for commercial purposes of
devices, products or components, as well as providing services,
shall be prohibited which
are the subject-matter of sales promotions, advertising or
marketing with the aim of circumventing effective technological
measures, or
apart from circumventing effective technological measures only
have a restricted economic purpose or benefit, or
are mostly drafted, produced, adjusted or provided in order to
facilitate or make easier the circumvention of effective
technological measures.

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Legal recourse
Cessation of infringement (sec. 97 subs. 1 Copyright Act)
Damages (sec. 97 subs. 2 Copyright Act)
Destruction, recall and release of copies (sec. 98 Copyright Act)
Information (sec. 101 Copyright Act)
Criminal and regulatory fine provisions (sec. 106 et seq. Copyright
Act)

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Collecting Societies

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Open Source / Creative Commons

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Open Source / Creative Commons

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Open Source / Creative Commons

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Case Study Streaming

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Case Study

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Contact Information
Sven Jacobs | Associate
Rechtsanwalt
Norton Rose Fulbright LLP
Taunustor 1 (TaunusTurm), 60310 Frankfurt, Germany
Tel +49 69 505096 416 | Mob +49 173 3404587 | Fax +49 69
505096 100
sven.jacobs@nortonrosefulbright.com

NORTON ROSE FULBRIGHT

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