In this section we present a few guidelines, structures and tools that can help authors exercise their rights or offer support regarding the uncomplicated use of works.
Copyright contract law is essentially covered by Sections 32ff and Section 36 of the German Copyright Act and specifies, among other things, that authors are entitled
The statutory right of the author to be able to request that the contracting party provide them with information about the extent of the use of the work and the proceeds and benefits derived from such use, for example, was added more recently in 2017 (Section 32d).
It is always a challenge when new types of use emerge and authors and users have to agree on equitable remuneration for such new forms (Section 32c). (see also 'Licensing agreements, transfers for a certain purpose and employment, new types of uses').
Collecting societies (VG) exercise those rights that artists or creatives find difficult or impossible to exercise individually. They administer these uses and distribute the royalties they receive to authors, and sometimes to other rights holders, in accordance with distribution plans, for example, because it is virtually impossible in practice to individually settle the playing of recorded music in pubs or the printing of works in newspapers, or because the law permits a certain use in principle, but ties it to remuneration that can only be asserted through a collecting society (known as statutory remuneration rights pursuant to Section 63a German Copyright Act). (see also Limitations of copyright).
Secondary exploitation is often mentioned in connection with collecting societies (example of primary exploitation: a piece of music is recorded or a book is printed; example of secondary exploitation: the music recording is broadcast on the radio or the book is loaned out by libraries). Overall, it can be observed that, with the increase in digitization and the resulting simpler possibilities for reproduction, the importance of secondary exploitations and thus also the revenue of the collecting societies are increasing.
Collecting societies in Germany exist for originators
Membership and costs
On the basis of a collecting agreement, authors entrust collecting societies with the exclusive administration of all rights explicitly mentioned in the agreement. These agreements then apply to all works of the author. Exceptions are sometimes possible, for example with regard to exclusivity (see also the note in the Creative Commons article). The conclusion of a collecting agreement is usually free of charge or otherwise the costs are low. Sample contracts and a large number of fact sheets can be found on the often very well-structured websites of the collecting societies.
It is usually sufficient for artists and creatives to be members of a single national collecting society. If they stay abroad for extended periods of time or if their works are used abroad, in many cases the foreign partner societies automatically administer the rights and forward the remuneration on the basis of reciprocity agreements. In most cases, corresponding lists can be found on the websites of the collecting societies.
It is essential for anyone who is a member of a collecting society to invest time in regularly reporting all known (secondary) exploitations of their works (for example, concert tour set lists, online publications of articles). This time investment is worthwhile because it is the only way to ensure that the money to which you are potentially entitled will actually reach you.
Focus visual art
For visual artists, the collecting societies also handle the so-called first-window rights in addition to statutory compensation claims (according to Section 32 ff German Copyright Act), i.e. authorizations for use of specific works are granted to individual users. If the artist has already concluded a direct agreement with the publisher or the website owner, it is important to inform the collecting society. This also applies to agreements with users in other countries, so that the collecting society in the country in which the use takes place does not prohibit said use.
Focus performing arts
For performing artists, the collecting societies only handle statutory remuneration claims. These compensation claims usually arise only in case of valid first-window rights, for example, when the recording of a stage performance is broadcast on TV. The question of whether the performance may be recorded must be directly negotiated between the artist and the organizer. On the other hand, radio broadcasts, public screenings or other second-window rights must be reported to the collecting society so that second-window fees may be calculated. This means that artists should report such uses to the collecting societies.
In principle, copyright protection exists even without membership
To avoid misunderstandings: Membership of a collecting society is not mandatory for your works to be protected. Artistic and creative works enjoy legal copyright protection even without membership and without the registration of the works with a collecting society (provided that the necessary threshold of originality has been met).
However, there are a number of statutory remuneration entitlements in German copyright law that can only be asserted via collecting societies and from the distribution of which individual authors do not benefit if they are not registered with the corresponding collecting societies. Although this may well be different in other countries or jurisdictions, the de facto effort of tracking and individual licensing of secondary uses may also be an issue in these places. In the event of unauthorized use of their works, the artist or creative must assert their own claims for injunctive relief and demand payment of (subsequent) fees and damages.
A private individual in China publishes photos of a visit to Berlin on their own website, including photographs of objects by a German designer. The designer was not informed about this and she does not agree with the publication of the photos.
In principle, the German designer may demand future injunctive relief, a (subsequent) fee and, in the event of demonstrable damage, compensation. She finds out who is responsible through the legal notice of the website and can contact them via e-mail to assert her claims.
Overall, however, it will be difficult to pursue these claims because the unauthorised user lives in China and therefore outside the EU. Any further legal action would therefore only be appropriate if large sums of money were involved, which is likely not the case here.
Copyright means that films, music, texts and photography are protected. This protection means that the use of these materials is only possible with the rights holder’s permission. We have already presented this introductory statement of copyright law in our other texts.
The Open Content Idea
However, this strict legal reservation does not always correspond to the interests of creative people: Sometimes, they want to make their materials available for free use. The motives for this vary: Sometimes, it may be pure selflessness. Sometimes creatives also opt for extensive approval because they want to achieve a wide distribution of their content above all.
An uprising design artist wants to promote her drafts to increase her degree of popularity.
An established musician, who distributes his music commercially, may seek to put recordings of his rehearsal sessions on the internet to pique the public’s curiosity regarding his music.
In many cases, it is also rather unlikely that the content will spread via traditional channels such as book publishers or music labels. Other content is not even intended for commercial circulation: for example, when an artist writes a speech and then wants this speech to be freely shared to increase her awareness.
Free distribution to the desired extent is often not easy to achieve if the strict reservation of rights of legal copyright applies. The idea of so-called open content licenses was established around the 2000s for precisely such concerns. These licenses allow easy sharing of content that is protected by copyright. From a legal point of view, such licenses are standard contracts that anyone can use. This concept had previously found favor with open-source software.
The Creative Commons licenses (CC) have prevailed for content from creative work such as music, film or text. They are now established and are used millions of times by creative people and well-known companies and public institutions. Courts understand Creative Commons licenses as binding terms; thus, one can use CC licenses with legal certainty. Open content licensing is required on some platforms. For example, content can only be put online on Wikipedia if it has an open content license.
Licensing: How It Works
One thing is essential: To make your material available under a Creative Commons license, you as a “licensor” must have the necessary rights – for example, if you have taken a photo yourself or wrote a text yourself. However, anyone who has already granted other people exclusive rights of use, or who has created the materials for their employer or is a member of a collecting society like GEMA, must first make sure that free licensing is even possible.
But what is the exact consequence of placing a piece of content under a CC license? First of all, everyone who comes across the content is allowed to do the following: unlimited sharing and redistribution, printing (for example, in a book), use in a film or music, or even the performance, for example, reading a text or perform a song. However, the author/rights holder must always be named, and the CC license used must be linked.
You decide how much freedom you allow
Licensors can impose several restrictions on sharing. These restrictions make up the different modular CC licenses. There are four different modules and six combination options:
Possible combinations are BY, BY-SA, BY-NC, BY-NC-SA, BY-ND, BY-NC-DD.
Finally, there is still a possibility of fully releasing usage rights to one’s own content (copyrights cannot be given up entirely in Germany and other countries, unlike in the USA): If one provides materials with the release declaration “CC0”, others may use them without any restrictions. Then not even the name of the rights holder has to be mentioned.
How do I license?
The License Chooser from CC helps with licensing. With its help, the appropriate license can be selected, CC license logos can be downloaded for the material, and a machine-readable version can be output (search engines can thus find CC-licensed content).
Information: Creative Commons Germany (only available in German)
What to do when works are being used illegally?
An artist or creative whose work is being used without authorization should first place great importance on preserving the evidence. For example, if an image was printed, the artist should obtain a copy of the magazine or book. In the event of unauthorized use on the Internet, the exact day and time and the web address on which the image was visible should be noted. It is advisable to ask an uninvolved witness to put down this information in writing.
After this, the person responsible for the copyright infringement should be identified. The imprint or legal notice can be helpful in the case of newspapers, magazines, books, the Internet, etc. If the website does not feature a legal notice, the owner of the site can be found through the domain name (web address) with the help of the German Network Information Center or the Internet Network Information Center. If the owner of the domain is not himself/herself responsible for the infringement, he/she can at least provide information about the person who is.
Once the person responsible has been identified, the artist or creative should require him/her in writing to stop using the work. This should be done sending a registered letter with a return receipt, requesting that the person in question stop the unauthorized use within a certain period (at least seven business days) and obligate him/her to refrain from any further unauthorized use in the future. This cease and desist declaration may also contain a penalty clause, i.e. the opponent has to pay a certain sum to the artist every time he/she infringes on the artist’s copyright in the future.
Moreover, reasonable compensation for the previous use may be demanded. A surcharge of up to 100% for copyright infringement is acceptable in German case law.
Finally, the artist or creative has a claim to compensation for applicable and verifiable damages.
Good to know: Infringement of copyrights constitutes a criminal offence (Section 106 ff German Copyright Act), but will only be prosecuted upon the request of the infringed party unless there is a special public interest in criminal prosecution (Section 109 German Copyright Act).
The situation is different, for example, in the case of failure to register the use of GEMA repertoire. In such cases, the licensing fees are merely doubled (penalty surcharge). This only applies for uses that can be licensed by GEMA.
With regard to the question of rights infringement, however, attention must be paid to the limitations of copyright: Did the use possibly fall under one of the legally permitted exceptions, such as the right of quotation, parody or the use of images for advertising purposes?
Since there are search engines that can track down photos on the Internet, warnings are frequently and quickly issued in such cases. The concept of "fair use" does not exist in Germany; at best there are limitations that allow limited use of certain works (e.g. the right of quotation).
What options does an author have if the infringer is located abroad?
In the case of an exclusive infringement by a party located abroad, without any domestic involvement, action should be taken in the country concerned. If the infringement also occurred in Germany, it is often possible to sue the infringer in a German court under German law. In the case of copyright infringers who live or have their place of business outside the EU, legal action is usually only worthwhile if the sums involved are very high. The situation may be different if the copyright infringer is located in the USA. As copyright infringements are very expensive and, in some cases, also punishable by law in the USA, it makes sense to involve a US lawyer in more extensive cases.
Application of German law
In the case of infringements, the principle of lex loci delicti applies, i.e. the law of the country in which the infringement takes place. This may be any country, for internationally operating companies. If, for example, a music title or a video recording (works) is played back from the server of a US company and the work can be accessed in Germany, German law applies with respect to the legality of the use (place of effect) when making the works available to the public. In the case of multistate offences in which there are several places of intervention, the infringement must be examined in each of the countries concerned.
Unless jurisdiction is derived from other grounds, such as treaties, German courts have local jurisdiction in copyright infringement cases, provided that the place of the infringement is Germany. The decisive factor in the case of multistate tort is the intended distribution.
If a work is distributed in Brazil on a Portuguese-language site, it can be accessed in Germany, but not for the intended purpose, which means that the jurisdiction of German courts is questionable. If the site is also published in German or is aimed at the Portuguese diaspora in Germany, it could be argued that the material was intended for distribution in Germany.