Test of knowledge on copyright
Here you can test your knowledge of copyright in a number of different courses. First of all, click on the index cards to see the question. One more click will reveal the right answer. The questions in our knowledge quiz only refer to German copyright.Enjoy the quiz!
Copyright is a product of the age of enlightenment. It is a link connecting authors and their works.
On the one hand, copyright protects the intellectual and personal relationships of authors to their works, while on the other it gives them the right to decide on how their works are used.
Copyright is part of business law, because is makes protected works marketable. On the other hand, it is the “working right of the creative community”, because it serves to protect equitable remuneration for use of the work.
A work protected by copyright is a personal intellectual creation. It is an expression of the personality of the author and this requires creative scope.
Only the actual work is protected. An idea that has not yet become a work is not protected. By the same token, the technology used to create the work or the style of the work are not protected either. What definitely are protected are independent preliminary stages leading up to a work (e.g. the screenplay for a film, sketches for a painting, etc.) and extracts of a work.
In the same way as it is almost impossible to define in absolute terms what “art” is, it is also impossible to say in absolute terms what types of work there are.
The German Copyright Act lists for example: works of language, musical works, works of pantomime and choreographic works, works of fine art, photographic works, cinematographic works and technical representations – but other kinds of works could develop and they would then also be protected.
On creation of the work – without any further formalities like registration, deposit, etc.
As a general rule, the Copyright Act protects the author. Third parties such as the commissioning party or employers can only obtain exploitation rights in and to the work.
Copyright applies for up to 70 years after the death of the author. After that, the work is in the “public domain” and so can be used by anyone. Note: Sometimes two works are contained in what is presumed to be just one. For example, if you want to use the photograph of a work by Michelangelo you don’t need to worry about the rights of the heirs of Michelangelo – but you certainly do need to consider the rights of the photographer who took the photo.
- Besides copyright there are also neighbouring rights for communicators of works like actors, musicians, film producers, music labels and radio broadcasters
- Trademark (for details of corporate origin)
- Design rights (in particular for product design)
- Utility patent rights (for technical solutions)
- Patent right (for technical inventions)
- The right to recognition of authorship and to be named in credits
- The right of first publication
- Protection against distortion of the work
Exploitation rights enable authors to decide whether and in what form their works may be used commercially or non-commercially. As a general rule, the author is entitled to equitable remuneration every time the work is used.
In the first place, the author has only the right to decide on every form of use of his/her work, in other words to approve its use or to withhold approval. However, authors frequently grant the most important exploitation rights to their commissioning parties even before the work is created, e.g. all the rights needed to exploit the film are granted to a film producer.
To produce physical copies of a work, the person making the copies must have the right of reproduction. A newspaper publisher, for example, needs it to reprint photographs in the print version of a daily newspaper. A download of a work is also a reproduction, because a new (digital) file of the work is saved.
It is the right to decide whether and in what form copies are made available (distributed) to the public. This right is usually granted together with the right of reproduction – it can have significance on its own, if the reproduction was made in a foreign country.
The right of exhibition is the right to exhibit a work of fine art to the public for the first time – after being exhibited for the first time, the right expires. Following sale of the work, the owner decides whether the work can be exhibited. The right of exhibition therefore has little practical significance.
This is the right to present a work on the stage, i.e. to show a film to the public in a cinema for example.
This is the so-called “Internet right”, which is required for all acts of transmission on demand. The Internet right is the only relevant right when it is a matter of streaming. If a user wishes to offer a work for downloading, the right of reproduction is also needed.
The broadcasting right must be granted to transmit a work on radio or television, regardless of the means of transmission involved (satellite, cable, DVB-T, Internet). The criterion of the programme is used to differentiate it from the “right of making available to the public” (Internet right): the broadcasting right is the relevant right when the work is a non-interactive part of a programme.
The cable retransmission right is needed by service providers retransmitting radio and/or television programmes simultaneously, in full and in unchanged form to their primary transmission in their cable networks. Example: A cable network operator receives satellite signals at a CATV head station and passes these signals on to a residential area.
A work is said to have been adapted, when it is modified and a new work is thus created. As a general rule, the adaptation is permitted, but the consent of the author is needed for it to be published or distributed. On the other hand, in the case of cinematographic adaptation of a novel, execution of a work of fine art or copies of an architectural work, the author’s consent is required to make such an adaptation.
When the original work has served merely as an inspiration and – as stated in case law – assumes less significance in the new work, it is not a matter of an adaptation, but of free use. As a rule of thumb: If the original work can still be clearly identified, it is in case of doubt an adaptation.
Copyright as a whole cannot be assigned, unless it is inherited. But the author certainly can grant so-called exploitation rights for individual uses. An exclusive exploitation right permits the party acquiring the right to exclude all others from the use in question, including the actual author! In the case of a single exploitation right, the acquiring party may in fact use the work, but other people can as well.
Like ownership of items, copyright is also subject to the social obligation, i.e. it can be limited in the interests of the general public in such a manner that individual uses specifically laid down by law cannot be prohibited by the author. As a rule, however, the authors receive compensation in return, e.g. in the form of a royalty claim.
The author can demand cessation of the violation and compensation. Destruction of unlawfully produced copies can be considered as well. Commercial violation of copyright can also have penal consequences.
The copyright exemptions are regulated as limitations as per Articles 44a ff. UrhG (German Copyright Act). They form exceptions to the exclusive rights of authors in and to their works and so enable users to utilise works without permission and/or paying royalties subject to certain specific conditions.
As an ownership right, copyright involves a social obligation of the author for the benefit of the general public. The limitations provided in the German Copyright Act restrict the rights of the author in certain exceptional cases, in order to make it easier for users to gain access to copyrighted works subject to certain conditions, for example in the interests of research, education and access to information.
The royalty-free uses not subject to authorisation include, among others, reporting of current events (Art. 50 UrhG), the quotation right under copyright law (Art. 51 UrhG), freedom to reproduce catalogue illustrations (Art. 58 par. 2 UrhG) and works in public places (Art. 59 UrhG). These uses are referred to as “free uses of works”.
The term ‘statutory licence’ is used for exemptions that despite not being subject to authorisation do in fact involve an obligation on the part of the user to pay remuneration. Examples of such usage are private copying (Art. 53 UrhG in conjunction with Articles 54 ff.), press review (Art. 49 UrhG), making available of works by libraries, museums or archives at electronic reading places (Art. 52b UrhG) or the schoolbook privilege (Art. 46 UrhG).
The moral rights of authors remain unaffected by the exemptions. Art. 62 UrhG provides for a prohibition of alteration, the purpose of which is to protect the author against any alterations and prejudice in use of his or her work. Furthermore, the user is as a general rule also required by Art. 63 UrhG to acknowledge all sources, because authors are entitled to recognition of their authorship in the work. Even if the work can be used without consent claiming the above exemptions, the author of the reproduced work must be clearly named in every case and the integrity of the work must be guaranteed.
The provisions must generally be interpreted as exceptions and preferential treatment in favour of the author. This means that usage of the work is possible only in the exceptional cases named in the law and the entitlement to use may not be extended to include other cases. Analogue application is on principle not possible. As a general rule, it is true to say that the restrictions may only be applied in certain special cases, which do not conflict with normal exploitation of the work or other subject of protection and do not unreasonably prejudice the legitimate interests of the right holder (Art. 13 TRIPS Agreement).
The purpose of this exception is to facilitate graphic reporting of current events. It covers documentations of events of the day in the form of video, audio or newspaper reports on a scale consistent with the intended purpose.
Use of a published work for inclusion in another work without consent or any obligation to pay royalties is possible for the purposes of the quotation. However, this freedom of quotation under copyright law differs from the scientific quotation. In order to make use of the exemption, the so-called purpose of the quotation must be fulfilled.
The purpose of the quotation is the decisive precondition for the quotation right. To fulfil the purpose of the quotation, it is not sufficient to merely mention the sources – what is rather important is that the work quoted is intended as evidence of own statements and as a basis for discussion. The quotation should be used to justify, intensify and ensure understanding of what has been presented. It must be integrated into the new work and an “internal link” should be established between both works. Utilisation of a quotation is not permitted, when it is only used as an example or a mere list – in such a case the work quoted is subject to royalties.
The publishing of illustrated analogue exhibition and sales catalogues is permissible within the scope of this limitation. This means that it is possible for public libraries, educational establishments or museums, for example, to include illustrations of works of art in exhibition or sales catalogues and directories, if the works in question are also displayed in the exhibitions or intended for public auction. In this case, however, the period during which the catalogues may be distributed must be tied to the duration of the exhibition/event. Digital use of the works in the Internet is only permitted for advertising purposes and is royalty-free.
It is permitted for a work that is permanently located in a public place to be reproduced in two dimensions (Art. 59 UrhG). This includes uses within the scope of painting, graphics, photography or cinematography for any purpose whatsoever (including commercial purposes). Sculpted copies of works of art, on the other hand, are not allowed.
Individual reproductions of a work for private use are permitted – including by third parties. A condition is that the master copy used for the reproduction was not made by obviously unlawful means. Reproduction may take place on any carriers, for example by photocopying, scanning, burning on CD or DVD or by video recordings of television broadcasts. A reproduction for own use is also permitted. This covers, for example, copies made for use in schools, although consent of the right holder may also be required in certain circumstances.
It is important to note that usage is permitted solely within the scope of private copying. Distribution of copies and their use for communication to the public is prohibited. This means that copies may not be distributed or offered to anyone. In the same way, it is for example not permitted to publish the copied work in the Internet on a website or to reprint it in a magazine.
If an act of reproduction of a work takes place within the scope of the private copying exemption (Art. 53 UrhG), the author is entitled to payment of an equitable remuneration. This remuneration is not claimed directly from the user, but levied from dealers, manufacturers and importers of reproduction equipment and storage media (Articles 54 ff. UrhG). Only collecting societies can assert claims to remuneration and every right holder is entitled to a share of the remunerations. The collecting societies distribute the revenue from the copying levy to their members in accordance with a distribution plan.
For the purposes of religious, school and instructional use, collections of works may be compiled subject to certain conditions in the interests of the general public in youth education and religious instruction. Such collections are in most cases books or CDs that may be reproduced and distributed by the publishers. This can generally take place without the consent of the authors, but they must be paid an equitable remuneration.
In companies, organisations, parties or authorities, the press review serves the interests of speedy and direct dissemination of information and the freedom to form an opinion. This provision generally permits the reproduction and distribution of already published or released daily news, current newspaper articles and broadcasting commentaries, if they relate to political, economic or religious issues of the day. An equitable remuneration must moreover be paid for such usage.
The purpose of the exception is to facilitate digital use of works protected by copyright at places accessible to the public. The intention here is to take account of the mission to educate and to promote the media competence of the population. Only works held by the relevant organisations, which do not serve any purpose of gain, may be provided for the purposes of research and private studies. The author must be paid an equitable remuneration for such usage.
Collecting societies are alliances of authors (or other rightholders like, for example, publishers or film producers) who have organised themselves into societies for the joint administration of rights, which can only be exercised individually with difficulty, if at all. These societies have the task of granting licences, collecting royalties for its rightholders and distributing the royalties to these rightholders.
Even if the law stipulates that certain copyright claims can only be administered by collecting societies, the societies are not government agencies, but organisations of members belonging to the private sector. Collecting societies do not administer government duties, nor are they run by the state.
In Germany, the activities of collecting societies are governed by the Copyright Administration Act (UrhWG) dating from 1965. The EU is currently (in 2013) planning a directive on collecting societies. As soon as the directive comes into force, it will have to be transposed into national law.
Collecting societies administer those rights and claims that authors are not able to exercise themselves for practical or legal reasons. These societies facilitate the clarification of rights for users and provide rightholders with the means to exploit their copyrights at all.
As a general rule, the law leaves it to the authors to decide whether they will let their works be used by others and, if so, under what conditions. However, there are certain exceptions, in which the law does permit usage without the author being able to raise an objection. This possibility results from the social commitment of ownership. In return, the law frequently (but not always) grants the author a statutory royalty claim, which can (in most cases) only be administered by a collecting society.
1) Collective rights management: Administration of rights and claims based on uniform conditions of usage.
2) Administration of rights as trustee: Collecting societies operate on a non-profit-making basis and distribute their revenue to their rightholders in full after deducting costs.
Yes and No: Legally speaking, No, because every rightholder can choose whether to join a collecting society or not and can also select their collecting society. Yes, because in practice so many rightholders have assigned their rights to the collecting societies that these societies often have de facto monopoly status. That is why in Germany collecting societies are subject to supervision by the German Patent and Trademark Office.
In order to avoid abuse of their de facto monopoly status, the UrhWG stipulates a number of rules. The most important of these are:
1)Dual obligation to administer
2)Obligation to draw up equitable tariffs (price lists)
3)Obligation to draw up non-arbitrary distribution rules
4)Principle of equal treatment
On the strength of their de facto monopoly status, collecting societies must on the one hand offer every rightholder the option to conclude an administration agreement and they may not turn anyone down. On the other hand, they must offer a licence to every rights user wishing to have one. Here again, they cannot refuse to license acts of exploitation.
The prices for licences or for the settlement of royalty claims are considered to be equitable, when there is a balanced relationship between service and consideration. Collecting societies usually negotiate the royalty level with the users and/or their associations. The outcome is then published as generally binding tariffs. Should no agreement be reached, both parties can appeal to the Arbitration Board at the German Patent and Trademark Office. The Arbitration Board bases its decision on comparable situations and the past ("Equitable is what is customary.")
The distribution rules of a society are lawful when on the one hand they have been properly drawn up in the correct form and, on the other, their content is equitable. Distributions are considered to be equitable if their nature and scope correspond to the rights and claims assigned by the rightholders.
If usage is fully documented, distributions can be paid out precisely. In the case of blanket uses, on the other hand, royalties must be distributed fairly on the basis of studies and/or indirect parameters. In this case, the distribution plan finds itself in a field of friction between costs and distribution accuracy.
Like things should be treated in like manner and unlike things in unlike manner. Otherwise the result will be arbitrariness. However, due to their (mostly) market-dominating position and their role as trustee, collecting societies are not allowed to act arbitrarily.
Collecting societies enter into standardised administration agreements with their rightholders (principle of equal treatment!), in which the latter assign certain rights and claims to their society. In an international context, collecting societies are connected to their foreign partner organisations by a dense network of agreements. This ensures that the rights of their members are represented practically all over the world, while at the same time the users can obtain the relevant repertoire from one source.
Yes, they can: in any case from among the societies representing the appropriate rights for their genre of work (e.g. visual art). A German painter can therefore become a member of VG Bild-Kunst or the French society ADAGP or of any other art society in the world. The network of agreements ensures that every society represents his or her rights. The home society is frequently chosen, because it will correspond with the painter in his or her mother tongue.
You, the authors and their works.