56-60.pdf

5. Limitations to copyrights protection (Lim. on [of] copyr. protection) 5.1 general principles The scope of application (Sec 11 et seqq GCA)-limitations by law (Sec 44a et seqq GCA) Copyright is only protected to a limited extent from the outset Copyright are absolute rights, but not unlimited righ...

5. Limitations to copyrights protection (Lim. on [of] copyr. protection) 5.1 general principles The scope of application (Sec 11 et seqq GCA)-limitations by law (Sec 44a et seqq GCA) Copyright is only protected to a limited extent from the outset Copyright are absolute rights, but not unlimited rights Limitations especially due to: (reasons involving restrictions on copyright) ① Legitimate interests of the public ② Promotion of (public) intellectual debate ③ Economic interests 【subtitle】However, later on with the law implementations and they said that this is not about what you are allowed to do something. So copyright is only protected to a limited extent from the outset. Still, it is an absolute right. So it works. Again, usually, anybody has a limitations character, especially due to, for example, the interest of the public or individual interest or legal persons will be good capacity and or just economic. Interest, for example, because somebody invests so much and this investment should be protected. Then what's however important when it comes to what's copyright will work we said that we have a non-exhaustive section 2, subsection 2. (However, in later implementations of the law, they said it wasn't about what you were allowed to do. As a result, copyright was only protected to a limited degree from the beginning. However, it was still an absolute right. So it worked. Again, usually, there are limitations for anyone, especially because, for example, the public interest or the personal interest or the interest of a legal person would be good for the ability and or just the economy. For example, because someone has invested and that investment should be protected. So, how important is that when it comes to what is the work of copyright, we say that we have a non-exhaustive section 2, subsection 2.) (Limitations are based on the principle of enumeration and are regulated by the German Copyright Act sec44a, which provides that limitations must be strictly enumerated.) Explanation European background: - Fully harmonized limitation => Art. 3-6 DSM-D - Not fully-harmonized => Art. 5 II-IV InfoSoc-D However when it comes to limitations to copyright we have an exhaustive enumeration in sections for a and following. So both the was recently did all. That is also what is recently involved, is everything you can do. And we have a completely different that stands than for example in the us because in the us we have only the doctrine of their use. So for example you have a copyright protected song and you would be allowed to use that song as long as you're using it fairly. Using a family basically means that you are paying for that . So. You can back up forever and it's like different and it is partly harmonized again we have a harmonization by the digital same markets directive and we have a parting harmonization by the InfoSoc-D。 56 5.2 Time-related limitations (Time limit -time restriction) Duration of copyright protection, Sec 64 GCA “Copyright expires 70 years after the author’s death.” Legal consequence: work becomes public domain => everybody is allowed to use it Deadline is independent of the publication date of the work => only the date of the death of the author is relevant, Sec 64, 69 GCA Example: Author dies 30.06.2022 => copyright expires 31.12.2072 Co-authorship（co-author） => Sec 65 (1) GCA => 70 years period begins with the death of the longer living author (based on the date of the last author) 5.3 Content-related limitations a. General principles All limitations must be applied in accordance with Art. 5 (1) InfoSoc-D “Three-step-test”, Art. 5 (1) InfoSoc-D : -Limitation must only apply within a certain special case -Normal exploitation of the work must not be impaired - Legitimate interest of the author must not be reasonably prejudiced - (Restrictions must apply only to a particular situation - Must not jeopardize the normal exploitation of the work - Must not reasonably prejudice the legitimate interests of the author. ) Here we are in a harmonious economized area. Therefore, we have to always have to have a look at some general principles before we're looking at specific principles and specific limitations. We have to have a look at the overall. (What we have here is a unified economic area. Therefore, before looking at specific principles and specific limitations, we must always first understand some general principles. We must look at the whole.) According to the "Three-step-test" principle, copyright exceptions should: Be limited to special cases: Copyright exceptions should apply only in specific circumstances and not in general situations. This means that exceptions should be reserved for particular needs. Not conflict with the normal exploitation of the work: Copyright exceptions should not conflict with the copyright holder's regular use and exploitation of their work. In other words, they should not interfere with the copyright holder's legitimate market interests or disrupt the normal economic exploitation of the work. Not unreasonably prejudice the legitimate interests of the rights holder: Copyright exceptions should not unreasonably harm the legitimate interests of the copyright holder. While exceptions may serve the interests of the public, they should be implemented in a way that does not unduly infringe upon the rights of the copyright holder. 57 (Limited to special cases: Copyright exceptions should apply only in specific cases and not in general. This means that copyright exceptions should only be applied in cases of special need. Does not conflict with the normal exploitation of the work: copyright exceptions should not conflict with the way the copyright holder normally exploits the work. In other words, the copyright exception must not interfere with the copyright holder's reasonable market interest or impede the normal economic functioning of his or her work. Does not unreasonably prejudice the legitimate interests of the right holder: the copyright exception should not prejudice the legitimate interests of the copyright holder in an unreasonable or disproportionate manner. While the exception may be in the public interest of the community, in doing so, it should ensure that the rights of copyright holders are not unreasonably infringed. ) b. Promotion of intellectual debate (For the purpose of promoting knowledge dissemination) ① Public speeches, Sec 48 GCA, Art. 5 (3) lit. 5 InfoSoc-D It is permitted Free reproduction, distribution and making available to the public of speeches relating to current affairs given at public meetings/on the radio (Sec 48 (1) no. 1 GCA) Free reproduction, distribution and making available to the public a speech delivered during public negotiations before state, local authority or church organs Purpose: Increase “range” of the speech (Public Speeches, Section 48 of the German Copyright Act, Article 5(3)(5) of the Information Society Directive It is permitted to reproduce and distribute speeches relating to current events in newspapers, periodicals or other printed matter or other data carriers which are primarily records of current events, if such speeches are delivered at public gatherings or published by means of public communication within the meaning of Section 19a or Section 20, and to communicate such speeches to the public. It is permitted to reproduce, distribute and communicate to the public speeches made in the course of public negotiations conducted by the State, a local body or an ecclesiastical institution.) ② Newspaper articles and broadcast commentaries, Sec 49 GCA Reproduction and distribution of individual newspaper articles (including their illustrations) and radio commentaries through traditional press reviews § Content: political, economic or religious issues of the day (According to section 49 of the German Copyright Act, newspaper articles and broadcast commentaries enjoy special copyright restrictions. These restrictions allow for use in specific cases without prior permission from the copyright holder.) ③ Reporting on current events, Sec 50 GCA Image and sound coverage of events relating to current events 58 Copyright protected work must be "in connection with the reporting of daily events”, Art. 5 (3) lit. c InfoSoc-D ④ Freedom of citation, Sec 51 GCA, Art. 5 (3) lit. d InfoSoc-D Broad scope of application => enumeration in Sec 51 p. 2 GCA is not exhaustive (cf. wording: “in particular”) ➢ Role of proof/evidence, CJEU C-516/7 – Spiegel Online The case involved a dispute between the German news website Spiegel Online and the fee-based organization VG Wort over the reproduction of articles on the website. The plaintiff needed to provide clear and precise information to enable the alleged infringer to assess the existence of the infringement and, if necessary, to mount a defense Intellectual debate necessary in society Inner connection between own and third party work must become clear Limitation: extent of quotation must remain limited Explanation：Under the limitations of copyright law, when citing another person's work, the citation must be kept limited in scope. This means that a citation of another's work cannot go beyond what is reasonable and there must be some correlation between it and the original work. ⑤ Caricature, parody, pastiche, Sec 51a GCA 漫画，戏仿，戏仿，第 51 章 GCA Implementation of Art. 5 (3) lit. k InfoSoc-D, Art. 17 (7) lit. b DSM-D Caricature = a pictorial representation that exposes a person, thing or event to ridicule by satirically emphasizing or exaggerating certain characteristics ( Caricatures, parodies and pastiches enjoy special copyright restrictions under section 51a of the German Copyright Act. According to this section: caricatures, parodies and pastiches may be produced, published and disseminated for non-commercial purposes without the prior authorization of the copyright holder. These works are usually adaptations or parodies of the original work in a humorous, satirical or clever manner. They must be sufficiently distinct from the original work to be recognizable as independent creations. They should be unique and creative in their own right and not just a simple copy or parody of the original work. The use of caricatures, parodies and collages should not have a disproportionately negative impact on the market value of the original work. This means that they should not deprive the author of the original work of a legitimate interest or potential commercial opportunity. It is important to note that these restrictions apply only to noncommercial purposes and personal use. Commercial use still requires permission from the copyright holder. ) C. Legitimate interests of the users /consumers （用户/消费者的合法利益） Reproduction for private and other personal uses, Sec 53 GCA ( According to Section 53 of the German Copyright Act, individuals may reproduce 59 copyrighted works for private and other personal use without obtaining permission from the copyright holder.) Consumption of the work must take place in the private sphere, i.e. within the family or close circle of friends, and may not serve any profitmaking purposes Background: wide distribution of reproduction techniques (e.g. printers) No obviously unlawfully produced model or a model which has been unlawfully made available to the public is used for the copying Hard copies and digital copies covered => max. 7 copies per work (Consumption of work must take place in the private sphere, i.e., within the family or close circle of friends, and must not have any profit-making purpose Background: widespread copying technology (e.g. printers) Hard copy and digital copy overlays =>. Maximum of 7 copies per work No use of models that are clearly illegally made or illegally available to the public for reproduction) ① Reproduction by broadcasting organizations,Sec 55 GCA, Art. 5 (2) lit. d InfoSocD ② Reproduction and communication to the public in commercial enterprises, Sec 56 GCA ③ Works located permanently in public places, Sec 59 GCA ④ Official works, Sec 5 GCA (not EU-harmonized) ⑤ Scientific research, Sec 60c GCA ⑥ Text and Data mining, Sec 44b, 60d GCA 6.Succession to copyright （不重要） Copyright is inheritable, Sec 28 (1) GCA Legal successors of the author have the same rights as the author, Sec 30 GCA During lifetime of the author a copyright cannot be transferred, Sec 29 GCA (According to Section 28 (1) of the German Copyright Act, copyrights are inheritable. This means that the death of the copyright holder does not result in the termination of the copyright, but that it can be passed on to his or her legal heirs. Legal heirs include the author's legal heirs or those appointed in a will. They inherit the copyright from the original author and have the same rights and interests as the author. Legal heirs have the same rights as the author, including the right to reproduce, distribute, display, perform and broadcast the work. They can authorize, license, and protect the work just as the author himself did. Copyright is not transferable during the author's survival, according to Section 29 of the German Copyright Act. This means that the author himself cannot fully transfer or assign the copyright to another person during his survival. The author retains copyright control over the work and can decide for himself how to use and manage his work. However, the author may still enter into a license agreement with others, granting them specific rights or licenses to use the work. Such licenses are usually non-exclusive and limited to a specific manner of use or a specific timeframe.) 60