Derivative work

The processing is a term of German and Austrian copyright law. Editing is a modification of a work that has the necessary level of creativity to acc. § 3 and § 5 dUrhG Template: to be § / Maintenance / RIS Search Section 1 öUrhG itself protected by copyright as a work. The arrangement of a work is generally allowed without the consent of the author, in Germany, with some exceptions (cf. § 23 sentence 2 dUrhG ). Publish and utilization of the processing is in accordance with § 23 sentence 1 and § 14 paragraph 2 dUrhG öUrhG always the consent of the originator of the machined work necessary.

The parallel term in the Swiss copyright law is the work of second-hand, see Art 3Vorlage: Art / Maintenance / ch- search URG. .

Regulation in the German Copyright

The processing as the subject copyright protection

Basically protects the German copyright works of literature, science and art (§ 1 of the Copyright Act ). The concept of work in turn comprises only personal intellectual creations (Article 2 § 2 of the Copyright Act ).

In fact, an existing plant also be a template for a modification, which in turn appears as intellectual creation and should therefore be protected by copyright law accessible.

This is reflected in the provisions of § 3 of the Copyright Act bill, by placing there that such modifications or work as independent works are protected (§ 3 sentence 1 of the Copyright Act ).

Requirement of a processing

Already from the outset function of protecting the edits to leave the premises of a processing derived: First of all, a processing presupposes a work that is being processed. This apparent self-evidence becomes important when one considers that a work that falls within the scope of copyright only under certain conditions, which include in particular an adequate level of creation belongs. If the output product not copyrightable work makes its change hence no processing is: the structure created by the modification is either itself a work in the sense of § 2 of the Copyright Act, or it's copyright without meaning.

The fact that the original work must be eligible for protection, however, does not mean that this potential copyright protection must be actually given. Please refer to the quality of the work is under lying as his nature under copyright law, no legal status. The processing of a public domain work, therefore, also falls under the concept of editing.

The more normalized in § 3 p 1 of the Copyright Act requires that a service can find copyright protection, is that also it presents itself as an intellectual creation of the editor. Just as the initial work including its modification must include a sufficient degree of autonomy. A further aspect of this requirement is the provision of § 3 sentence 2 of the Copyright Act, which clarifies the extent that the only minor arrangements of a non-protected musical work may not be protected as independent work.

Definition and examples

Not every creative activity that uses a template is an edit. The term must be distinguished from the transformation of the co-authorship or the so-called free use rather.

• In the co-authorship, it is clearly not a matter that the author edited the work of another author, but in the event that several together to create a ( originary ) work.

• Transformation would be in contrast about the satirical or parodic picking up a substance or even writing a sequel. In these cases, the result of the transformation readily as his own shows, so do not need to be referred to the concept of editing.

• The free use within the meaning of § 24 of the Copyright Act in turn means a reworking of the substance so far advanced that the original work still serves as the basis, however, is to recognize only conditionally in the new plant. Also in this case the result of the free use under copyright terms without recourse can be judged on the rules governing the processing as an independent work.

A classic example of a machining contrast, called the text of the law itself: By § 3 sentence 1 of the Copyright Act expressly speaks of translations and other adaptations, it is clear that translations are certainly edits of the original. Other examples would be the dramatization ( treatment as stage work ) or adaptation of a text.

Legal consequences

According to § 3 of the Copyright Act edits are protected as independent works. This means that the agent enjoys full copyright protection for its processing power. However, he does not acquire any rights to the edited original work, so it can proceed only against unlawful use of its processing. The processor copyright arises with the processing itself, it is independent of the consent of the originator of the processed work and remains 70 years after the death of the editor protected ( § 64 German Copyright Act), regardless of whether the copyright in the machined previously extinguished.

Right to edit

The provisions of § 3 of the Copyright Act underlying legal opinion that also the editor of a work is to experience the protection of copyright, but not change the fact that even the processing of a work to intervene as such in the copyright of its creator, eg can diminish his reputation by publishing a faulty translation into a foreign language in which the original not -knowing readers, etc.

Accordingly, the entire legal field of intellectual property is the result of a long and very controversial discussion. The traditional concept of ownership of § 903 BGB depends after all on things ( § 90 BGB), not works.

In the course of this discussion entirely, it was considered, the copyright must accept the processing of his case. Until 1901 about the translation freedom was widely recognized.

Today, in contrast, § 23 of the Copyright Act contributes to the protection of the author before editing invoice. The provision reads literally:

The legislature therefore differentiated between the preparation and publication of a processing. The publication required by § 23 sentence 1 of the Copyright Act in any case, the consent of the author of the original work. In contrast, the creation of a processing is basically a permit, if it is not the film adaptation of a work or the execution of plans and projects, for example in the field of sculpture, or is architectural works or database works, because in this case the author already by the mere production is impaired in its legal position.