Copyright

Copyright initially referred to the subjective and absolute right to the protection of intellectual property in ideal and material aspects. As an objective law, it shall be the sum of the norms of a legal system that govern the relationship of the author and his successors in title to his work; it will determine the content, scope, transferability and consequences of the violation of subjective rights.

• 3.1 Legal technique
• 3.2 requirement of resistance
• 3.3 requirement of originality
• 3.4 Individual plant species 3.4.1 photographs

• 4.1 works of several authors
• 4.2 Assignments

• 5.1 Formal requirements copyright protection
• 5.2 The droit moral 5.2.1 The right of publication
• 5.2.2 The droit au respect
• 5.2.3 The droit à la paternité

• 5.3.1 right to quote

• 6.1 Transmission on death

History

Legal families

German legal system

Romanesque jurisdiction

Common law

Object of copyright

Legislative technique

The protected object of copyright laws in all jurisdictions a work of art. As a legislative technique was quite historic first enumerative form chosen to define what is to be protected as a work. However, in order to be able to include technical innovations copyright adequate, the general clause sat next to it soon through. Most jurisdictions set today following the influential revised Berne Convention of 1908 on a mixed type: where the protected object is initially in general and further shape defined ( Germany: " works of literature, science and art ", France: " oeuvre de l ' esprit " by type. L.112 -18 CPI) but supplemented by collections. The legal tradition of common law are in accordance with the UK Copyright, Designs and Patents Act 1988 and the U.S. Copyright Act of 1976, the focus on longer lists with differentiated legal definitions at the beginning of the laws.

Requirement of resistance

A minority of jurisdictions granted copyright protection only on the condition that the work of a certain ( physical ) must have resistance. The best known example is § 102 (a ) of the Copyright Act of 1976:

" Copyright protection subsists, in accor dance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from Which They can be [ ... ] Communicated [emphasis not in original]. "

Requirement of originality

The requirement of originality is one of the core elements of modern copyright law. There is also a central element of the legitimacy copyright protection. Legislation Technically there are two avenues available to describe this feature: Through the description of the creation process or by description of the result; usually a combination of both is selected. In the legal systems of continental Europe, the aspect of the personality of the author is in the foreground: the work must be protected if only because it was a piece entäußerter, as it materialized personality of the author. Based on this approach and the object of copyright according to determined - worth protecting is just what is an expression of the innermost personality of the Creator. Language, Technique or historical data and events can therefore not be the object of copyright.

Individual plant species

Photographs

The photography was artistic reputation historically at first - because supposedly mere reproduction of reality - below the conventional art forms. Accordingly, they learned relatively late recognition as worthy of protection by copyright artistic genre. The regulations can be divided into three groups: In many jurisdictions photographs are the other arts identical and enjoy regular copyright protection. In some other jurisdictions photographs are divided into " artistic" photographs ( photographic works ) with full and " ordinary " or "simple" photographs ( photographs) with a lower level of protection. Finally, a third group of jurisdictions that exclude photographs of copyright protection and provide a separate set of rules exists.

Owner of the copyright

Works of several authors

The cases of co-authorship may be divided into three major groups:

The third group is the aspect of multi- authorship of the legally problematic: In the event of an infringement of genre boundaries, the question arises whether and when the contributions are generally to be regarded as a work. Furthermore, to clarify the rights of the authors can make claims against each other for differences at work. A special problem in this group provides the common law in the Romanesque circle construction of the collective oeuvre.

A widespread and typical solution of the first two problems provides tangible § 11 of the Copyright Act -A: A copyright is therefore all co-authors jointly. A change or exploitation of copyright requires a unanimous decision of all authors. However, some jurisdictions do not allow already supported by the majority of authors ( see, to Mexico Ley Federal del Derecho Article 80 de Autor ) or even of a single author (Argentina: Article 19 of the Ley de Propiedad Intelectual ) suffice. In most laws, there are rules, from which it is clear that with the combination of various genres - caused not one, but two separate works - about words and music. Even in the absence of legal regulation follow case law and legal doctrine, however, almost always the solution.

Contract work

The different treatment of commercial work shows paradigmatically the different approaches of the measure in Roman legal tradition copyright in the strict sense ( droit d' auteur, diritto di autore ) the countries of the civil law as opposed to the Anglo-Saxon copyright. Has the creator of a work made ​​in fulfillment of contractual obligations by ( rough ) specifications of the client, there are two ways to assign the resulting subjective right: either the client or the contractor. The countries of continental European tradition choose the latter solution as exemplifying Portuguese law:

" O direito de autor intelectual criador Pertence ao da obra, salvo disposição expressa em Contrário. "

" A copyright is to the intellectual creator of the work, to the extent otherwise expressly agreed by contract something else. "

The legal systems of common law copyright choose for the first possibility:

"Where a literary, dramatic, musical or artistic work, or a film, is made ​​by at employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary. "

The nature and scope of copyright

Copyright is a temporary monopoly right in favor of the creator of a work.

Formal conditions copyright protection

Under the influence of the revised Berne Convention of 1908, the vast majority of jurisdictions granted copyright protection regardless of formal prerequisites. An important exception was until 1989 the law of the United States: Under § 401 ( a) Copyright Act 1976, all copies of the work had to carry (C in a circle) the © symbol. This is still in works that were first published before 1 January 1978. Another formality consists in U.S. law by the fact that under § § 408-412 Copyright Act 1976, two copies of the work or phonogram in the Copyright Office of the Library of Congress must be deposited. Failure to do but threatens more than a penalty - which copyright protection is not affected. When depositing the registration of the work may be requested whereby certain procedural law benefits can be obtained. A similar provision also exists in Argentina ( see Article 57-63 Ley de Propiedad Intelectual ).

The droit moral

The right of publication

The German law recognizes as part of the author's moral rights in addition to the exploitation rights of an independent publication rights in § 12 of the Copyright Act; the norm is there even referred to as " basic standard of copyright protection ." Notwithstanding this position in German law a comparable standard of the majority of jurisdictions is strange: In the Nordic countries we deliberately avoided in the 1960s to the introduction of such a rule, even the laws of Austria and Switzerland lack of a comparable standard. The practical difference is still extremely low: Since almost all the functions of the right publication can also be covered by the patent rights was discussed even in Germany, his need intensive and doubts. Another significant legal droit de divulgation one knows France (Art. L121 -2 CPI), subject to a separate intestaten succession.

The exploitation rights see also the right of use in copyright law ( § § 31 ff of the Copyright Act ).

The droit au respect

The protection of the author against the presentation of his work in a damaging his reputation and his artistic beliefs contradictory form is under the French term droit au respect ( Fr. ~, the right to dignity and respect ' ) are discussed. Although the vast majority of copyright laws agree that the author is entitled to such a right; but there are significant differences on the scope and standards. The Berne Convention statuiert since 1928 [or 1948 ] 6 bis of the rights of the author, " regardless of his economic rights, and even after the transfer [... ] to oppose in kind to any distortion, mutilation or other modification of the work [ or any other impairment of the work ], the his honor or his reputation could be detrimental " ( fr. " Indépendamment des droits d' auteur patrimoniaux, et même après la cession desdits droits, l' auteur conserve le droit [ ... ] à toute de s'opposer déformation, mutilation ou autre modification de cette œuvre [ou à toute autre à la même atteinte oeuvre ], préjudiciables à son honneur ou à sa réputation ").

The droit à la paternité

The French term droit à la paternité (French ~, the right to recognition of authorship ') can be understood in a narrower and a wider sense: In the actual sense, it includes the right of the author that his name or his pseudonym in connection is represented by the work, if the work itself to the public. The Berne Convention statuiert since 1928 [or 1948 ] in Article 6 bis of the rights of the author, " regardless of his economic rights, and even after the transfer to take the authorship of the work lay claim " ( fr. " Indépendamment des droits d' auteur patrimoniaux, et même après la cession desdits droits, l' auteur conserve le droit de la revendiquer paternité de l' œuvre ").

In a broader sense it also includes the negative side of the droit à la paternité in the strict sense: The author may take action against any false attribution of the work even if the work is not made ​​available to the public. In a broader sense, it is not attributable to the actual copyright but - depending on the legal system - the rules of personal rights, the law of defamation or contract law.

Limitations to copyright

Right to quote

It has been recognized since the existence of copyright standards, in the context of artistic and scientific treatment of copyrighted works, copyright limits are set by the quote right. In the German Copyright Act of 1965, the admissibility of quotations was initially finally allowed in three cases, which were the result of a long scientific debate, however, were soon adapted by expanding the jurisdiction. Other legal systems of the Anglo-Saxon and Scandinavian legal family knew, however early a flexible general clause: To quote the law of case law in the common law is the doctrine of fair dealing (or fair use ) dominates. The German legislature has taken the 2008, and § 51 of the Copyright Act designed as a general clause with rule examples; so also eliminates the restriction on speech works in § 51 No. 2 of the Copyright Act aF. The examples of rules of German law continues to distinguish between uppercase and lowercase quote quote. Limiting feature is still the purpose of the quotation: Only " provided that the use is justified in its scope by the specific purpose " may be cited.

The wording of the law differs according to lit the French law in Article L122 -5 Section 1 No. 3. a) CPI between analysis and courte citation, which does not comply with the German division into upper and lower case citation or divorced similarly dogmatic clarity as in German law from each other. The key is also here on the " caracter critique, polémique, Pédagogique, scientifique ou d'information ", ie the purpose of the quote off. Under Italian law, in contrast, brings another aspect: According to Article 70, Section 1 of the German Copyright Act -I need the quotation also be justified in so far as the protected work no economic competition is to be built by the quote.

Assignment of copyright

Transfer on death

The copyright is subject in most jurisdictions the rules of inheritance in the absence of a will. The succession can usually be determined by will as by the general rules of inheritance. In some jurisdictions, the German legal system ( cf. § 28, § 29 of the Copyright Act -D and § 23 of the Copyright Act -A ) is the transfer mortis causa ( " in case of death "), the only way to transfer the copyright.

Violations of copyright

Copyright infringement are not regulated separately in many jurisdictions, but are subject to the rules of the common law, so regular civil procedural law, tort law and criminal law. Civil procedural law is particularly the interim legal protection of importance in order to avoid irreparable damage by prompt action. A famous example of a copyright special rule is the saisie contrefaçon (French saisie, ensuring ' contrefaçon imitation " ) of the French copyright law, which allows the highest speed in breach of copyright copies made to have it collected by the competent judge or commisaire de police. In this case, the property of the respective defendant can be searched without a prior hearing.

Duration of protection

In the standard case - ie a single author who publishes their own work during his lifetime - shows the revised Berne Convention for a minimum period of 50 years after the creator's death (post mortem auctoris ). Member States may introduce longer protection period. Many countries have increased the term of protection to 70 years, including 1965 Germany ( § 64 of the Copyright Act -D ), 1972 Austria ( § 60 of the Copyright Act -AT) and 1985 France (Art. L123 -1 Code de la Intellectual Property ); again significantly longer protection period consist of 80 years in Guinea (Art. 42 Law No. 043/APN/CP August 9, 1980), 99 years in the Ivory Coast (Art. 45 Law No. 96-564 of 25 July 1996) and 100 years ago in Mexico ( Ley Federal del derecho Article 29 de autor ).

The term of protection of works of anonymous authors in § 66 of the Copyright Act -D, representative of numerous other jurisdictions ( eg France, Sweden, Brazil), shall be as follows: If the identity of the author is unknown, the otherwise post-mortem fixed term of protection shall not apply from death, but from publication. Another solution selects the U.S. law in 17 USC § 302 c ): So are either 95 years after first publication or 120 years after creation of the work - in each case the longer period applies.

International Copyright

Cross-border scenarios play a particularly important role in the field of copyright. Here - as elsewhere in cross border situations - three questions to be distinguished: First, is the question of the International jurisdiction, ie which state courts decide on the case, to clarify; hereafter is directed the applicable conflict of laws. The conflict of laws are, in turn, information as to which substantive law applies. Last foreign legal aspects of national law are often observed in the field of copyright. The question of the applicable law - the International Copyright as a branch of private international law ( conflict of laws provisions or better ) - is the focus of scientific discourse.