Copyright Law (GCA) PDF

➢ Employer relies on derivative contractual acquisition of rights of use, Sec 43 GCA8 3.3 Ghostwriter ➢ The creator principle does not know any representation ➢ Whoever writes, paints or composes works for another person in accordance with the contractual agreement without appearing to the outside w...

➢ Employer relies on derivative contractual acquisition of rights of use, Sec 43 GCA8 3.3 Ghostwriter ➢ The creator principle does not know any representation ➢ Whoever writes, paints or composes works for another person in accordance with the contractual agreement without appearing to the outside world as the creator of the work is and remains the author => Sec 13 p. 1 GCA9 (The Creator Principle has no knowledge of any contractual agreement on behalf of any person to write, draw, or create a work for another person, and the creator who appears to outsiders as the creator of the work is and remains the author. Whoever wrote it is the author.) Client may, however, be co-author in the event of participation (Agents may participate as co-authors) 3.4 Presumption of authorship ➢ Sec 10 (1) GCA10: “The person designated as the author in the usual manner on the copies of a released work or on the original of an artistic work is regarded as the author of the work in the absence of proof to the contrary (…).” In the absence of evidence to the contrary, a person who is designated as the author in the usual manner on a reproduction of a work or an original work of art that is distributed is deemed to be the author of that work. Sec 10 (2) p. 1, 2 GCA11: editor or publisher of the copies are subsidiarily presumed to be the author (The editor or publisher of the copy is presumed to be the author by the Attached band) 3.5 Co-authorship, Sec 8 GCA 8 Sec 43 GCAThe provisions of this Subdivision also apply where the author has created the work in the fulfilment of obligations resulting from an employment or service relationship, unless otherwise provided in accordance with the terms or nature of the employment or service relationship. 9 10 Sec 13 p. 1 GCA: The author has the right to be identified as the author of the work. Sec 10 (1) GCA: (1) The person designated as the author in the usual manner on the copies of a released work or on the original of an artistic work is regarded as the author of the work in the absence of proof to the contrary; the same applies to any designation which is known to be a pseudonym or stage name of the author. 11 Sec 10 (2) GCA (2) Where the author has not been named in accordance with subsection (1), it is presumed that the person designated as the editor on the copies of the work is entitled to assert the rights of the author. Where no editor has been named, it is presumed that the publisher is entitled to assert such rights. 46 ➢ Sec 8 (1) GCA12: joint authorship of the jointly created work only occurs if the authors' shares cannot be economically exploited separately (Co-creation of a work only if the author's share cannot be economically exploited separately) ➢ Only one work is created + only one copyright emerges ➢ Sec 8 (2) GCA13: Legal community of co-authors can exercise (commercial, not moral) rights together(Legal community of co-authors can jointly exercise (commercial, not moral) rights) 4 Scope of protection + rights of use (1) 4.1 General Principle ➢ “Copyright protects the author in his or her intellectual and personal relationships to the work and in respect of the use of the work.” Sec 11 p. 1 GCA14 ➢ “It also serves to ensure equitable remuneration for the use of the work.” – Sec 11 p. 2 GCA There are 2 dimensional approach. So first of all, protects the author and his intellectual and personal relationship to the work. This would be first approach. So intellectual and personal relationships be protected. And second, and in respect of the use of the work, it also starts to ensure for the use of the work. So use of work as well as football remuneration as a second approach. personality rights/ moral rights: which protects the relationship between the author and the personal relationship between the author and his intellectual creation. economic exploitation rights: protect the usable usability of the work by the author 4.2 Relationship between moral rights and exploitation rights 12 Sec 8 (1) GCA: (1) Where several persons have jointly created a work without it being possible to separately exploit their individual shares in the work, they are joint authors of the work. 13 Sec 8 (2) GCA: (2) The right of publication and of exploitation of the work accrues jointly to the joint authors; alterations to the work are permitted only with the joint authors’ consent. However, a joint author may not refuse consent to publication, exploitation or alteration contrary to the principles of good faith. Each joint author is entitled to assert claims arising from violations of the joint copyright; a joint author may, however, demand performance only to all the joint authors. 14 Sec 11 p. 1 GCA: Copyright protects the author in his or her intellectual and personal relationships to the work and in respect of the use of the work. It also serves to ensure equitable remuneration for the use of the work. 47 Monistic theory = unitary right in which personal rights and property rights are inseparably interwoven (the indissolubly intertwined monist right to personal and property rights) Moral rights and exploitation rights do not stand separately next to each other None of these rights is of greater importance than the other one (none of these rights is more important than the other) moral rights means that do not focus on things like exploitation, so they are not like to have a commercial background. But they are bound to personality of the proprietor of the right Personality right is a basic right. And the other one is a transferable right is exploitation 4.3 Moral rights, Sec 11 et seqq GCA ➢ Recognition of moral rights in Germany since 1912, codified only as late as 1965 in the GCA (The recognition of moral rights in Germany since 1912 was not codified in GCA international law until 1965.) ➢ Int. recognition in 1928 in Art. 6 Revised Berne Convention (RBC) (Recognized in 1928 in article 6, amending the Berne Convention for the Protection of Literary and Artistic Works (RBC).) ➢ The moral right protects the intellectual bond that connects the author with his work as a manifested part of his personality (Moral rights protect the intellectual bond between an author and his or her work, which is an expressive part of the author's personality) ➢ Expiration of the moral right: 70 years post mortem auctoris (Termination of moral rights: auctioneer 70 years after death) Which rights can we differentiate here? a. Right of publication, Sec 12 (1) GCA 15 15 Sec 12 (1) GCA: (1) The author has the right to determine whether and how his or her work is to be published. 48 ➢ “The author has the right to determine whether and how his or her work is to be published.” – Sec 12 (1) GCA (the right of authors to decide whether and how to publish their works) ➢ Negative right => author has the right to prevent unwanted (or unnecessary )publication b. Right of recognition of authorship, Sec 13 p. 1 GCA16 ➢ “The author has the right to be identified as the author of the work.” – Sec 13 p. 1 GCA ➢ Negative right => author can defend himself against presumption of authorship by a plagiarist and against his work being falsely attributed to someone else c. Right of recognition of authorship, Sec 13 p. 2 GCA17 ➢ “The author may determine whether the work is to bear a designation of authorship and which designation is to be used.” – Sec 13 p. 2 GCA ➢ He can choose between a civil name, a stage name or a pseudonym ➢ Author can also prohibit to have his name mentioned We have a positive dimension so the office and the creators who work and decide if they're using a name and if they want to use a name, which name they are using. d. Protection of integrity, Sec 14 GCA18 ➢ “The author has the right to prohibit the distortion or any other derogatory treatment of his or her work which is capable of prejudicing the author’s legitimate intellectual or personal interests in the work.” – Sec 14 GCA The author has the right to prohibit distortion or any other derogatory treatment of his work that would jeopardize the author's legitimate intellectual or personal interest in the work. Basically can allow other people to do anything with it, with his work. It can also stop other people from doing things he doesn't want them to do. For example, if someone protests against the government's lack of environmental protection going to a museum and smearing a painting, it's an infringement of rights. Summary：Moral rights are only assigned to the author of the work and they cannot be transferred to anybody else. (Can only be assigned to the author and cannot be transferred to anyone else) 4.4 Exploitation rights, Sec 15 et seqq GCA 16 Sec 13 p. 1 GCA:The author has the right to be identified as the author of the work. 17 Sec 13 p. 2 GCA: The author may determine whether the work is to bear a designation of authorship and which designation is to be used. 18 Sec 14 GCA: The author has the right to prohibit the distortion or any other derogatory treatment of his or her work which is capable of prejudicing the author’s legitimate intellectual or personal interests in the work. 49 a. Protective system Exploitation right = exclusive right of the author to exploit his or her work in material form (Sec 15 (1) GCA) and to communicate his or her work to the public in nonmaterial form (Sec 15 (2) GCA) Sec 15 (1) GCA “The author has the exclusive right to exploit his or her work in material form; this right in particular includes 1. the right of reproduction (Sec 16), 2. the right of distribution (Sec 17), 3. the right of exhibition (Sec 18). “The Right to Reproduce, Distribute and Display” Sec 15 (2) GCA “Further, the author has the exclusive right to communicate his or her work to the public in non-material form. The right of communication to the public in particular compromises “The right to disseminate to the pablic” 1. the right of recitation, performance and presentation (Sec 19), 2. the right of making the work available to the public (Sec 19a), 3. the right of broadcasting (Sec 20), 4. the right of communication by video or audio recordings (Sec 21), 5. the right of communication of broadcasts and of works made available to the public (Sec 22).” 4.5 Right of communication to the public 4.5.1 权利用尽原则（Exhaustion Doctrine）★★★ The Exhaustion Doctrine, also known as the First Sale Doctrine, is a legal principle that limits the control that a copyright holder has over the distribution and resale of a copyrighted work once it has been lawfully sold or transferred. The doctrine is based on the idea that once the copyright owner has authorized the first sale of a copy of their work, they have exhausted their exclusive rights to control further distribution of that particular copy. Also known as the principle of exhaustion of rights and exhaustion of rights, it is a principle specific to intellectual property products. This principle means that once an intellectual property right holder or licensee has legally circulated intellectual property products, the intellectual property right holder is deemed to have obtained a selfidentified reasonable benefit based on the intellectual property right in respect of those products, and some or all of the exclusivity rights held by the original intellectual property right holder have been exhausted as a result, and the original right holder is precluded from asserting a claim of benefit based on the intellectual property right in respect of those products. 50