Copyright law of Germany

German authors' right or Deutsches Urheberrecht is codified in the Gesetz über Urheberrecht und verwandte Schutzrechte (also referred to as Urhebergesetz or Urheberrechtsgesetz and abbreviated UrhG). An official translation is available.^[1]

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It should not be confused with copyright (exclusive rights to copy granted to distributors), and is more akin to authors' rights (exclusive rights to profit from one's work granted to authors).

Court decisions have set vastly different standards for the eligibility of works of applied art on the one hand and other types of work on the other, especially fine art. While the barrier is usually very low for fine art and protection is granted even for minimal creativity (dubbed "kleine Münze", literally "small coin" or "small change"),^[2] there are extremely high standards for applied art to be reached for it to achieve copyright protection.^[3] This is so because Geschmacksmuster (design patents) and Schriftzeichengesetz (typeface patents) are seen as lex specialis for applied art such that the threshold of originality must not be assumed low for them. This has been confirmed by courts several times, especially for logos, but also for earrings.^{[citation needed]}

The Urhebergesetz is an authors' right (droit d'auteur) or "monistic" style law. As such there is a special emphasis on the relation between the work and its actual author.^[4] The right is perceived as an aspect of the author's general personality right and as a general rule is therefore inalienable. This also means that there is no corporate copyright in Germany^[5] and the fundamental rights cannot be transferred except by inheritance ("heritage").^[6]

While exclusive licences are almost as powerful as copyright transfer, the author always retains some rights to the work, including the right to prevent defacing and to be identified as the author.^[7] Employment agreements are frequently construed as granting the employer an exclusive licence to any works created by the employee within the scope of their obligations. For computer software, the copyright act expressly provides that all economic usage rights (as opposed to personality rights) "belong" to the employer.^[8]

A recent amendment of the Urhebergesetz (sec. 31a, included in 2008) has created the possibility to grant licences for "unknown uses", i.e. permit use of works in media not known at the time the licence is granted. Previously this had not been possible, so that even "unrestricted" licences granted before the mid-1990s did not (and could not) include the right to use the work on the internet, which created considerable practical problems.

Copyright collecting societies that collect royalties as part of compulsory licensing in the European Union (EU) usually hold monopolies in their respective national markets.^[9] In Germany, case law has established the so-called GEMA Vermutung, a presumption that works are managed by the Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA) due to its monopoly position.^[10] As such, in Germany the burden of proof is on the accused infringer that the work is not managed by GEMA.^[10]

Germany has implemented the EU Copyright Directive 93/98/EEC. Parts of the Directive were based on German authors' right law in the first place, e.g. the duration of copyright term: German authors' right law had previously granted protection for 70 years after the death of the author,^[11] which was the longest term of all EU member states; prior to 1965, the protection was life plus 80 years.^{[citation needed]}

According to historian Eckhard Höffner the 1710 introduction of copyright law in what was then Great Britain and later in France acted as a barrier to economic progress for over a century, while Germany prospered in the same time frame due to the lack of copyright laws. At that time Germany did not yet exist as a unified nation; and the many states that comprised the German territories were still primarily agrarian. Copyright law was absent and not enforceable. Prussia introduced a copyright law rather late, in 1837, but even then authors and publishers just had to go to another German state to circumvent its ruling. Höffner argues that, as a result, there was a massive proliferation of books, fostering the spread of knowledge and laying the foundation for the country's eventual industrial ascendency.^[12] Comparing the English system, where copyright ruled, to the free-wheeling German situation, he notes that in 1843 about 14,000 new publications, including a high proportion of academic works, were published in Germany, compared to only about 1,000 publications in England.^[12] In England publishers exploited their position, paying authors little, while selling their products for the well-to-do. In Germany, publishers had to sell cheaply to the masses in a competitive market, aside from producing luxury editions for the wealthy. Höffner believes that the availability of bestsellers and academic works at low prices fostered a wide, educated readership; he also argues that the lack of copyright benefited the authors financially. Eventually copyright laws were enacted throughout Germany, and with unification, in 1871, such laws also became enforceable. In the meantime, Höffner contends, Britain had lost its intellectual head start on the Industrial Revolution.^[13]

The author is the creator of their work, which enjoys copyright protection in accordance with the UrhG, §§ 7, 1, 2 UrhG.^[14] Accordingly, all work resulting from a personal intellectual activity is copyright protected.^[15]

The "principle of non-transferability" of full or divided authorship according to § 29 I UrhG is valid. Therefore, the creator of an original work can neither transfer their personal right as a creator,^[16] nor the complete rights for the exploitation of their work to others.^[17] According to §§ 15 f. UrhG the author is the only one who is able to take advantage of the exploitation rights.^[18]

If an author himself does not want to exploit their own work, it is possible to grant the rights of utilisation to another person. In accordance with the regulation of § 29 II UrhG (referring to § 31 UrhG) the copyright itself cannot be transferred as long as the author is alive. However, the author can choose whether or not they want to grant certain exploitation rights regarding their copyright protected work to another one.^[19] The authorised person purchases the warranty to utilise the work in the granted way, separated into several types of use.^[20] The right of use can be granted as a non-exclusive right or an exclusive right of use. It can be granted with restrictions on spatial and temporal usage or restrictions on the exploitation concerning the contents, § 31 I 2 UrhG.

On 1 March 2018, the Act to align copyright law with the current demands of the knowledge‑based society or Urheberrechts-Wissensgesellschafts-Gesetz (abbreviated UrhWissG) covering the fields of research and education came into force.^[52][53]

• Image copyright (Germany)
• German patent law