Copyright for TeachersCertain Aspects of the German Copyright Law

September 17, 2011Stefan Lüft, CMS Hasche Sigle, Munich

Content

I. Works protected by copyrights

II. Owner of the copyright

III. Term of protection

IV. Rights of the author

V. Permitted use of protected works

VI. Exceptions and limitations of copyright

VII. Consequences of infringements

VIII. Consequences for use of copyright protected materials by teachers

Copyright for Teachers | 17. September 2011 2

I. Works protected by copyrights

German copyrights protects authors of literary, scientific and artistic works which are personal intellectual creations

Work categories include:• Works of language

• Musical works

• Works of pantomime, including choreographic works

• Works of fine art, including works of architecture and of applied art and plans for such works

• Photographic works, including works produced similar to photographic works

• Film works, including works produced similar to film works

• Illustrations of scientific or technical nature like drawings, plans, maps, sketches, tables and 3-dimensional representations

Adaptations of works (e.g. translations), collections and data base works protected as well

Photographs and moving pictures protected similar to photographic works/film works

Additional protection provided for computer programs, scientific editions, posthumous works, and in favor of performers, organizers of a performance, broadcaster, producers of a data base and film producers

II. Owner of the copyright

Owner of the copyright: author In case of joint creation: joint owners, joint ownership

• Copyright itself cannot be assigned to third parties, but rights to use protected works may be assigned (license)

III. Term of protection

Generally 70 years post mortem auctoris

IV. Rights of the author

Moral rights• Right of publication

• Recognition of authorship

• Protection against distortion of the work

Exclusive rights to use the work• in material form

• for communication to the public

Right to use the work in material form, in particular

• Reproduction right (Sec. 16 Urhebergesetz, UrhG)

• Distribution right (Sec. 17 UrhG)

• Exhibition right (Sec. 18 UrhG)

Right of communication to the public, in particular

• Recitation, performance and presentation right (Sec. 19 UrhG)

• Right to make the work available to the public (Sec. 19a UrhG)

• Broadcasting Right (Sec. 20 UrhG)

• Right of communications by means of video or audio recordings (Sec. 21 UrhG)

• Right of communications of broadcasts and works made available to the public (Sec. 22 UrhG)

Decisive point: Communication to the public, if intended for a plurality of persons not connected by personal relationship with each other or the organizer

Scope of protection: Copyright protected work is not only protected against identical use, but as well against the publication or commercial use of adaptations or other transformations (Sec. 23 UrhG)

V. Permitted use of protected works

Use of copyright protected works permitted, if• License agreement in place (contractual relationship), or

• approved by the owner of the right (declaration by right holder, e.g. "print"-button in the internet), or

• based on a legal exception or limitation of the copyright

VI. Exceptions and limitations of copyright

Exceptions and limitations of copyright safeguard a fair balance of rights and interests between right holder and users of protected subject-matter

Condition for use of a copyright protected work on the basis of an exception or limitation: no changes of the work and indication of the source

Examples of exceptions and limitations of special interest for teachers:

• Reproduction of schools broadcast (Sec. 47 UrhG) Schools: publicly available schools (Grund-, Haupt-, Realschulen,

Gymnasien, Berufs-, Berufsbildende Schulen, Abend- und Sonderschulen)

no schools: Volkshochschulen or entity offering private lessons

• Right to quote (Sec. 51 UrhG)

• Public communication (Sec. 52 UrhG)

• Right to make available for teaching and research (Sec. 52a UrhG)

• Reproduction for private or other personal uses Private copy (Sec. 53 para.1 UrhG)

for other personal use (Sec. 53 para. 2 UrhG)

for use for teaching and for examinations (Sec. 53 para. 3 UrhG)

Remuneration for use of copyright protected works on the basis of limitations and exceptions:

• Use of copyright protected works on the basis of exceptions and limitations is in most cases only allowed, if right holder is granted fair compensation.

• compensation collected by collecting societies which distribute proceeds to right holders (GEMA, VG Wort, VG Bildkunst, VFF, VG Media, …)

• Principles for collection of compensation by collecting societies: Rights holders entitle collecting societies to assert their rights

Collecting societies establish tariffs and/or conclude agreements with organizations of manufacturers of copying machines, recorders, storage media or of user groups (e.g. agreements between the states of Germany and the collecting societies on the use of reproductions of copyright protected works and the making available of such works for school classes).

VII. Consequences of infringements

Right holder entitled to the following claims:

• Claim for cease and desist from infringement

• Claim for destruction of unlawful reproductions and tools used for the reproduction

• Claim for information on illegal activities

• Claim for damages

Copyright infringement is a criminal offence

VIII. Consequences for use of copyright protected materials by teachers

1. Works of authors which are dead for more than 70 years may generally be used without permission.

2. In principle all writings of a certain complexity, all works of fine art, all photographs, movies and computer games are the subject matter of copyright protection. Works of architecture and applied arts may be protected by copyright depending on the level of creativity.

3. works available in the internet are protected by copyright and may only be used with consent of right holder or in

compliance with a legal exception or limitation of copyright.

4. The fact that a text or photograph can be down-loaded or printed from the internet may be seen as consent for

personal use by the user, but not for further reproduction and use for teaching.

5. The offerer of private lessons is NOT privileged by the legal limitations and exceptions for reproduction for or making

available of protected works for teaching in schools or other non-commercial institutions of education and further education or institutions of vocational education

6. Consequently, the offerer of private lessons has to ask for permission for reproduction, distribution and any form of

communication to the public (rights holder or collecting society)

7. Teachers in privileged schools and institutions have to comply with the limitations of the copyright law and, if applicable, the provisions of agreements concerning the use of works at school.

• Major limitations under the law: Only small parts of a work, works of a minor scope or individual

contributions published in newspapers or periodicals or made available to the public may be reproduced for the use in class ore made available for download to the class.

Works intended for the use in schools may only be used with permission.

• Modifications by existing agreements: see

www.lehrerfortbildung-bw.de/sueb/recht/urh/

Thank you for your attention!

Stefan Lüft, CMS Hasche Sigle, München

Stefan.Lueft@cms-hs.com

Tel.: 089 / 23 807-160

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