Are authors all over the world entitled to the same rights? Is copyright law in Germany comparable to American copyright law? In the era of the Internet and globalisation, the question of a universal copyright law arises even more. The worldwide exchange of information in form of texts, images, sounds, and other works is, after all, the main idea of the World Wide Web.
However, there is no international copyright system, only international copyright contracts. So if you want to know where authors have which rights, it is worth taking a look at the international copyright conventions of the countries and their development. Then we can compare American and German copyright law. You will also find out under which circumstances third-party works may be used without the author’s consent.
Berne Convention (1886)
First of all, let’s have a look at the origin of all international copyright conventions, the Berne Convention of 1886. Ten states, including Germany, concluded the first “international copyright contract” for the protection of literary and artistic works.
Together, they agreed for the first time that each member state must acknowledge the protection of works by citizens of other contracting parties in the same way as it acknowledges the protection of works by its own citizens. In addition, a term of protection of at least 50 years beyond the death of the author was agreed, which members were allowed to extend voluntarily. In 1989, more than a hundred years later, the USA also signed the Berne Convention. The revised Berne Convention currently has 181 signatories.
Three basic principles of the Berne Convention:
- Automatic protection without registration
- Foreign authors have the same protection within the contracting states as domestic authors
- Minimum standards for the protection of copyrights in all contracting states
Universal Copyright Convention (1955)
The Universal Copyright Convention was developed as an alternative to the Berne Convention by UNESCO (United Nations Educational, Scientific and Cultural Organisation). Due to the lower requirements for copyright protection, it was more attractive for many countries to only become part of the UCC. Before the United States joined the Berne Convention, it was therefore only a member of the UCC. The main problem for the US at the time was that the Berne Convention provided for copyright protection of a work without registration or inclusion of a copyright notice. However, according to the law of the United States at the time, every work first had to be registered in order to be protected. Only after a substantial change in the American copyright law could America join the Berne Convention.
TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights, 1995)
The UCC in particular has lost importance in the meantime because almost all members are also members of the World Trade Organisation (WTO), which provides for the signing of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
The agreement gains particular relevance through the principle of national treatment. According to this, nationals of other contracting states must in general have the same rights as domestic authors. An American therefore has the same copyright rights as a German national in Germany. Unfortunately, the application is not quite that simple, because in certain cases it is not the nationality of the author that is decisive, but the place of residence or the place of performance of a work.
The TRIPS Agreement not only regulates international copyright issues, but also patent law. It also gained prominence during the Corona pandemic, when a proposal was made to temporarily suspend the TRIPS Agreement on patents to allow developing countries to produce the Covid 19 vaccine.
With this basic understanding of international copyright law, we can now make a comparison between the United States and Germany.
Disclaimer: This article provides information on a juridical topic, but does not replace juridical advice. Please seek advice from a specialist lawyer if you have specific concerns.
Copyright law in the USA vs. copyright law in Germany
In the United States, works such as books, music and films are protected by copyright law. The owner of the copyright is called the copyright holder.
Copyright law provides the owner with exclusive exploitation rights, for example:
- The right to reproduce
- The right to prepare derivative works
- The right to perform publicly
However, it should not be confused with trademark or patent law. These exist independently alongside copyright law. Incorrectly, the terms “Urheberrecht” and “copyright” are often used equally in Germany.
In Germany, the legal tradition of continental European copyright law applies. According to this, it is impossible to renounce one’s own copyright because it is a “related right”. It is inseparably linked to the author and therefore cannot be sold. Third parties can only be granted rights of use. This is achieved by concluding a licence agreement. The author receives a licence fee and the contractual partner receives a licence to use.
Unlike in Germany, American law traditionally does not have moral rights (§§ 12 ff. UrhG), i.e. rights that belong exclusively to the author and cannot be transferred to other persons. Although in American law copyright also arises automatically when the work is created, the focus is on different protection goals. While in Germany the creator of the work itself is to be protected, i.e. the artistic achievement of the author, the US copyright aims to protect the economic aspects. This also explains why a copyright can be transferred to a company, which is not possible in Germany.
The registration of a work is not obligatory for the accrual of protection in either Germany or the United States, but can be beneficial for the author in the American law area, for example, if a litigation arises and the author is in dispute.
Since both Germany and America have signed international copyright agreements, they are obliged to keep a period of protection for at least 50 years after the author’s death. Germany has chosen a voluntary extension of 20 years. Accordingly, works are protected for 70 years after death. The basic idea behind this is that the descendants of an author can still receive a financial reward from the creative work. In American law, the calculation of the term of protection is more complicated and depends on various factors. For example, a work can be protected for between 70 and 120 years, depending on the first publication, the date of creation or whether it is an anonymous work or a commissioned work.
|Author||Creator of the work||Can also be acquired by a company|
Ideational and artistic significance
Achievement of the author should be acknowledged
The work is in focus, not the author
|Duration of protection||Up to 70 years after the author’s death|
Depending on various factors:
Works owned by the creator:
Works owned by a company:
|International Copyright Convention|
As a member state of the European Union:
As a separate state:
|1989 Berne Convention|
1911 Buenos Aires Convention
1955 UCC GENEVA
1974 UCC Paris
2019 Marrakesh VIP Treaty
|Start of protection||Creation of the work||Creation of the work (since 1989: Berne Convention)|
Special feature: fair use doctrine
In America, it is also forbidden to use protected works without the consent of the author. However, this right is subject to various restrictions. One example is the so-called fair use doctrine (17 U.S.C. §§ 107 – 122). Under certain circumstances, this allows copyrighted works to be used without a licence.
The assessment of fair use is determined according to four factors:
- The purpose and type of the work’s use: it is not allowed to focus on commercial purposes, but on scientific criticism and educational purposes.
- The type of copyrighted work
- The amount and materiality of the portion used in relation to the copyrighted work as a whole.
- Effect of the use on the potential market or value of the copyrighted work.
How these factors are judged in court is shown by the lawsuit “Elvis Presley Enterprises, Inc. v. Passport Video” from 2003. The defendant was the company Passport Entertainment, which had produced and sold a documentary film about the life of Elvis Presley. The problem was that the plaintiff’s copyrighted video material was used in the production of the film. Although the video material only accounted for about 5 to 10% of the total film, the court decided that the amount was considered significant in relation. The documentary also contained parts of Presley’s appearances on various television programmes, including from the Steve Allen Show in 1956 with the famous performance of “Hound Dog”. The defendant had not acquired a licence to use this either, instead he invoked the fair use doctrine.
The court determined that the documentary film clearly had commercial purposes in the first place and did not serve any scientific criticism or analysis. The use of the copyrighted materials was thus not covered by fair use.
As a defence for the usage of protected works, the fair use doctrine should therefore be used with caution – especially because different courts interpret the factors differently and there is no consistent opinion on the weighting. Under no circumstances should the doctrine be misunderstood as a loophole for the gratuitous use of copyrighted works.
Fair use in Germany?
Although the concept of fair use does not exist in Germany, there are exceptions to the use of other people’s works without their consent (so-called copyright limitations). These include, for example, the “right to quote”, the use of “works in the public domain”, “free use” or use for the purpose of caricature, parody and pastiche.
Admittedly, the terms are less memorable, but grant the user similarly far-reaching rights like the concept of fair use.
Works in the public domain
Since copyright protection lasts for a maximum of 70 years after the author’s death, a work is then in the public domain and can be used without consent. Unfortunately, works can often not be used safely even after this period of protection, because publishers etc. usually still have neighbouring rights to the works.
Another way of using works without consent is the free use according to § 23 UrhG. Prior to the reform of the Copyright Act in 2021, this form of use was regulated in § 24 UrhG. Because this standard has been dropped in the meantime, many sources of information, especially on the internet, are outdated. It is all the more important to realise that free use still exists in the copyright law in principle. The basic idea has not disappeared from the law, but has been modified by other, partly new regulations.
Previously, new works were allowed to be published by using features of the original, provided they could be classified as an “independent work”, i.e. as “free use”. The decisive factor for this was a clearly recognisable distance from the used work, i.e. a high degree of individuality was required.
This principle is now regulated in § 23 UrhG and was complemented by a more specific regulation for the creation of caricatures, parodies and pastiches in § 51a UrhG.
Free use is to be separated from the adaptation of a work mentioned in § 23 UrhG, which always requires the consent of the author. In the case of an adaptation, the original essentially retains its essence, such as in the case of a translation of a book into another language.
Right of citation, § 51 UrhG
Quotation of protected material is possible without consent under the following conditions in § 51 UrhG:
- First, the excerpt must be taken from a work that has already been published and is protected by copyright.
- The biggest challenge, however, is the required purpose of the citation. Usages need to be justified by a specific purpose. For example, the explanation of a scientific work is a suitable citation purpose. A quotation that is used solely as an eye-catcher and does not have a supporting function is not permitted. Therefore, postcards with a quotation are regularly not protected by § 51 UrhG.
- The work also must be marked as a citation and may not be fundamentally changed. However, it is permitted to shorten the quotation if it seems necessary for the purpose of the quotation.
Publishing a work abroad
… or: Why cross-border copyright protection is so complicated in the judicial sense.
Each country has its own copyright law. As a general rule, this country-specific law is only applied within the state borders. Therefore, if a work is distributed in America and Germany, it is covered by two copyright systems at the same time.
International agreements such as TRIPS only contain minimum rights of an author within the contracting countries. They grant a uniform standard of protection but are not to be understood as a separate system of law. An important aim of these agreements is to ensure that the nationals of the signatory states are treated in the same way as their own nationals in the case of a dispute (the so-called principle of national treatment).
For an internationally active author, this means that in case of copyright infringement he or she has to claim the right for whose territory he or she is claiming protection (so-called country of protection principle). The contracting state is then obliged by the convention to treat the author legally like its own citizen. In the case of copyright infringement in Germany, therefore, German law applies.
This approach is controversial. There are people who demand that an author should only be entitled to one right, and that is the one in which the work was originally created. Within the European Union, however, the concept of the copyright in the country in which protection is claimed was adopted as early as 2005. Inevitably, the country of protection principle leads to significant uncertainties in case of media distributed via internet. In which country does the online infringement take place?
Three key judicial questions arise in the case of cross-border copyright infringements:
- Which law is to be applied?
- Which national court has jurisdiction?
- How can a judgment be executed?
In principle, every act (e.g. copying) is initially subject to the law of the country in which it (e.g. copying) takes place. If a song is published in Germany, German law applies first. It is more complicated to determine the competent court in international disputes. As a rule, the courts of the state in which the defendant has his or her residence or business establishment have jurisdiction. In the case of copyright infringement, the courts of the states in which the right was infringed also have jurisdiction. In the case of copyright infringement through reproduction, the state in which the work was reproduced has jurisdiction, as well as the state in which the work was distributed. If a court has then passed a judgement and the defendant does not comply with the judgement voluntarily, the judgement is executed. In Germany, this is done by the bailiffs. However, if the judgement is to be enforced in another country, it usually has to be acknowledged first (so-called domestication). Then it is enforced by local authorities as if the judgement had been issued by a local court.
What can you learn from this post? First of all, the knowledge that there is no singular and universal copyright across national borders. This means that there can be no simple answer to the question of how intellectual creations are protected internationally. Fortunately, most states in the world agree: copyright is not an end in itself, but a meaningful concept. Numerous international agreements prove that there is at least a common, almost global consensus on the protection of creative works that can be invoked in the event of a dispute.
The comparison between German copyright law and American copyright law also shows that there are at least many similar basic legal ideas for protection. However, it is above all the differences that make it clear how important it is to consider in advance where works are to be published and used. In principle, it is therefore never wrong to ask the author for permission before using his or her works. In the case of international legal disputes, a lawyer should be contacted in any case, otherwise it is hardly possible to deal with the resulting problems properly.