Alemania

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251

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NATIONAL LEGISLfl.TION

GERMANY (l'ecleral Rcpuhlic)

I

Act dealing with Copyright and Related Rights (Copyright Act) (Of September 9, 1965) 1)

PART I Copyright

SECTION 1 General

Article 1. - Authors of literary, scieutific and artistic works shall enjoy protection for their works in the manner

prescribed by this Act.

SECTION II

The work

PrutPcted wurlrs

Article 2.- (l) The literary, scientific and artistic works protected hereunder include, in particular:

l. literary works, such as writings and speeches; 2. musical works;

3. works of pantotninte, including choreographic work ; ·1. artistic works, including architectural works and works

of applied art anll plans and sketches of such works;

5. photographic works, including works produced by pro­ cesses analogous to plaotography;

6. cinernatograplaic works, including worb produced by processes an;dogous to cinematography;

7. illustrations of a scieutific or technical nature, such as drawings, plans, maps. sketches, tables and plastic rep­

rescntations.

(2) "\Vorks" within the meauiug of this Act include ouly

personal intellectual creations.

Adatltllticms

Artirle 3. - · Translations and othet· adaptations of a work which constitute persoual intellectual creatious of the adapter

:-.hall he protected in the same manner as independent works,

without prejudice to the copyright in the pre-existing work

titus adapLed. Cull<u:tiuns

!lrtir-le 4. - Collcctious of worh or of other contrihu­ tiOIIS which, hy virtue of the selectiou or arrangement thereof,

constitute personal intellectual creations shall he protected in

the. am() rnanner as indepeudent works. without prejudice to

tit(· copyright iu the works thm collected.

0IIicial rvurlrs

Article 5. - (l) Acto, regulations, official decrees and uo tices as well as decisions and officially drafted guideliues of decisions shall not enjoy copyright protection.

(2) The same shall apply to other official works published 111 the official interest for puhlic information, provided that

the provisions of Article 62, paragraphs (l) to (3), and Ar­ ticle 63, paragraphs (l) and (2), concerning prohibited altera­ tions and indicatiou of source shall apply as appropriate.

Di8seminated rvorl•s and published wurlcs

Article 6. - (l) A work has been disseminated if, with the consent of the copyright owner, it has been made acces­

sible to the puhlic.

(2) A work has lrel'll published if, with the consent of the

copyright owner, copies of the wor·k have been produced in sufficient quantity and have been publicly offered for sale or

put into circulation. An artistic work shall also be regarded as having been published if, with the consent of the copyright

owner, the original or ll copy of the work is made permanently

accessible to the public.

SECTION Ill

The author·

Author

Article 7. - The author is the person who creates the

work. Co-llu.tlwn

Article 8. - (J) lf two or more persons have created a wor·k in comrnon, and their respective contributions cannot be

separately exploited, such persons shall be co-authors of the work.

(2) The right of puhlication and of exploitation belongs joiutly to the co-authors; alterations of the work shall he

pennissible only with the consent of the co-authors. Neverthe­ less, a co-author rnay not in bad faith refuse his consent to the publication, exploitation or alteration of the work. Each co-<tuthor shall be entitled to assert clairns arising from in­

fringements of the joint copyright; he may, however, demand

payment only to all co-authors.

(3) [u the absence of any contrary agreement between the co-anthors, proceeds resulting from the utilization of the

work shall accrne to the co-authors iu proportion to the

extent of their respective contributions to the work.

(·1-) A co-author tuay waive the r·ight to his share of the ("xploitation rights (Article "15). The other co-authors shall

l1e uotified of the waiver. \Vitlt the notification the share shall accrue to the other co-authors.

') Ct•setz iiut•r Urlwuerrecfll w11l uerwwufte SclwtzrcchLe (Urheuer­ rechts�;esetz). vom 9. September 1965, puhlishcu in Duudesgesct:blllll, I, p. llH. No. 51, of Scplcmher 16, 1965.

252 COPYIUGHT- D£C£MBI R t9fi:.

Authors of composite worlcs

Article 9.- If seven1l authors have combined their works

for exploitation in common, each of them may require from

the other his consent to the publication, exploitation or al­

teration of the combined (composite) works, if such consent

can in good faith be demanded.

Presumption of mithorship

Article 10. - (1) A pet·son who is designated 111 the cus­

tomary rnan11er as the author on copies of a work which has

been published or on the ot·iginal of an artistic work shall, in

the absence of proof to the contrary, be regarded as the

author of the work. The same shall apply to a designation

which is known as the author's pseudonym or artist's marie

(2) Where the authot· is not designated as provided in

paragraph (1), it shall be presumed that the person designated

as editor on the copies of the work is empowered to assert

the author's rights. Where no editor is designated, it shall be

presumed that the publisher is so empowet·ed.

SECTION IV

Contents of copyright

1. General

Article 11. - Copyt·ight shall protect the author with respect to his intellectual and personal relations to the work,

and also with respect to the utilization of the work.

:!. The moral rights n£ the author

The right of dissemination

Article 12. - (1) The authot· shall have the right to de­

termine whether and how his wot·k is to be disseminated.

(2) The t·ight of publicly communicating the contents of

his wol"lc or a description thereof is reserved to the author,

provided that neithet· the work, nor its essence, nor a descrip­

tion thereof has previously been publicly disseminated with

his consent.

Recognition of 1111thorshi[I

Article 13. - The author shall have the right of recogni­

tioH of his authorship of the work. He can determine whether

the work is to bear an author's designation and what designa­

tion is to be used.

Dist.ortion of the worl.:

Article 14.- The author shall have the right to prohibit any distortion or any other mutilation of his work which

would prejudice his lawful intellectual or personal interests

in the work.

:1. Exploitation rights

Generul

Art.icle 15. - (l) The author shall have the exclusive

right to exploit his work in material form; the right shall

comprise in particular:

l. the right of reproduction (Article 16);

2. the right of distribution (Article 17); 3. the right of exhibition (Article 18).

(2) The author shall further have the exclusive r-ight to

publicly communicate his work in non-material form (right

of publicly communicating); the right shall comprise iu parti­

cular:

l. the right of recitation, performance, representation all{l presentation (Article 19);

2. the right of broadcasting (Article 20); 3. the right of communicating the work hy means of sound

or visual records;

11. the right of communicating broadcasts (Article 22).

(3) The communication of a work shall be public if it 1s

intended for a number of persons, unless such persons form

a clearly defined group and are i11ter-connected personally

by mutual relations or by a relationship to the organizer.

Right of reproduction

Article 16. - (1) The right of reproduction shall be the

right to make copies of the work, irrespective of method or

number.

(2) The fixation of the work on devices which permit the

repeated communication of a series of images or sounds (sound

or visual records) shall also constitute a reproduction of the

work, irrespective of whether the objective is to record a com­

munication of the work in visual or audio form, or to transfer

the wot·k from one such sound or visual record to another.

Right of dist.ribution

Article 17. ( 1) The right of distt·ihution shall be the

right to offer to the public or to place in circulation the

original work or copies thereof.

(2) If the original work or copies thereof have heeu dis­ tributed through sales thereof with the consent of the owner

of the right of distributing the work for the area within the

jurisdiction of this Act, their further distribution shall he

pumissible.

Right uf exhibition

Article 18. The right of exhibition shall be the right

to place on public view the original work or copies of an

unpublished artistic work or of an unpublished photographic

work.

Right of rec1:tation, performance, repre.sentat.ion

and presentation

Article 19. -- (1) The right of recitation is the right of

publicly pt·esenting a literary work, hy a personal rendition.

(2) The right of performance or representatio11 is the right of publicly presenting a musical work, by a personal

rendition, or to perform the work publicly on the stage.

(3) The t·ights of recitation, performance and representa­

tion include the right to engage in recitations, performances

and representations perceptible to the public by screen, loud­

speaker, or hy analogous technical devices, in a place other

than that in which the personal rendition Lakes place.

(4) The right of presentation is the right to make an artistic work, a photographic work, a cinematographic work,

ot· illustrations of a scientific or technical character percep­

tible to the public by means of technical devices. The right

of presentation docs not include the right of publicly com­

253

nnicating the broadcast prrsentation of such works (Ar­

1

lc 22).

Right of broadcasti11g

Artil'le 20. - The right of hroadcastiug 1s the right to

uder the work accessible to the public by a wireless broad­

st such as a radio or televi iou transmission, or by wire, or

· other analogous techuical dPvices.

'ght of commullicatiull by IIII?IIIIS of l'isuol ur suuncl records

Article 2L. - The right of comm1111ication by visual or

nud records iti the right to make publicly perceptible recita­

lns, representations, or performauces, of the work fixed on

;ual or sound records. Article 19, paragraph (3). is appli­ hlc hy analogy.

Right of conllnllllicatioll of broadcasts

Article 22. - The right of commnnicating broadcasts is e right to make such broadcasts publicly perceptible either

;ually or audibly by means of a SCl'een, loudspeaker or ana­

ous technical devices.

Ad"tJtatiolls and transformatiolls

Article 23. - Adaptations or other transformations of a •rk may be published ot· exploited only with the consent of

author of the adapted or transformed work. Fnnhermore,

the case of cinematogt·aphic adaptations of a work, or of execution of plans and sketches of an artistic work, or

copies of an architectm·al work, the creation of such adap­ inn o1· t1·ansformation shall 1·equit·e the author's consent.

Fair usc

Article 24. (1) An independent work created by the-

r LISe of the work of another person may be published and

ploited without the consent of the author of the used work.

(2) Paragraph (l) shall not apply to the use of a musical rk by which a melody has hcen recognizahly borrowed from

: work and used in a new work.

4. Olltt•r· r•igltts ul' l ht• attlltnt·

Access tu copies of the wurA-

Article 25. - (1) The author may demand of the pos­

sor of the original or· of a copy of his work that he be Jwed access to the original or the copy, provided this is

:essary for the making of reproductions or adaptations of

·work and does uot mili tate against lawful interests of the

;sessor.

(2) The possessor shall not be required to deliver up the giual or the copy to the author.

01'0it de suite

Article 26.- (1) Should the original of an arttst1c work

resold and should such resale involve an art dealer or au :tioncer as purchaser, vendor or agent, the vendor shall

, the author a participation at tl1e rate of one per centum

the sale price. There sh;tll he no such obligation if the • prict· is lt·ss than five hundred German marks.

NATIONAL LEGISLATION

(2) The author may not iu advaucc waive his right to the participation. The expectancy thereof shall not be subject to

judicial execution; auy disposition of the expectancy shall be

without legal effect.

(3) The foregoing provisious shall uot apply to architec­ tural works and works of applied art.

The lenrli11g of copies

Article 27. - (1) H copies of a work. the fmther dis­ tribution of which is permissible pursuant to Article 17, para­ graph (2), are loaued, the lender shall pay to the author au

equitable remuneration with respect thereto if the lending was executed for the financial gain of the lender.

(2) The provisions of paragraph (1) shall not be appli­

cable to works which are published exclusively fo1· lending

purposes.

SECTION V

Succession. Gt·anting of licences

1. Legal succe ssion to CO(> ·right

Inheritance of copyright

Article 28. - (1) Copyright may be transmitted by in­

heritance.

(2) The author may by testamentary disposition assign

the exercise of the copyright to an execntor. Article 2210 of

the Civil Code shall not apply.

Co11veyance of copyright

Article 29. - Copyright may be conveyed pttt·snant to a testamentary disposition, or to co-heirs pursuant to the settle­

ment of an estate. Otherwise, it may not be conveyed.

Author's legal successor

Article 30. - In the absence of any arrangement to the

contrary, the author's legal successor shall have the rights enjoyed hy the author under tire present Act.

2. Cop ·l'igh I liccnct•s

The granting of licences

Article 31. - (l) The author may grant a licence to an­

other to utilize the work i n a particular manner or in any

manner without limitation. A licence may be granted as a nou-exclusive right or as an exclusive right.

(2) Non-exclusive liceuces shall entitle the licensee to use

the work, concnrrently with the author or with other rightful claimauts. iu the m<tnner permitted to him.

(3) Exclusive liceuccs shall entitle the licensee to use the wol'i<, to the exclusion of all other persons, including the

author, in the manner permitted to him, and to grant noll­ exclusive licences. The foregoing ts subject to the provisions of Article 35.

(.J) A licence purporting to grant rights with respect to

uukuown means of utilization, and <tny ohligatious with t·e­ spect thereto, shall have 110 legal effect.

(5) [f the terms of the liceuce do uot specifically enume­

1·alt' ways itt which tltc work may he used, the scope of the

-DECEMBER25-J. COPYRIGHT 1965

grant of rights shall I.Je determined in accordance with the purpose envisaged til making the grant.

Article 32. or purpose.

Licence limilations

Licc>nces may be limited as to place, Lime

Continuing effect of non- :rclusiue licences

A rticle 33. - A non-exclusive licence which the author has grauted prior to granting an exclusive licence shall remain

effective vis-it-vis the exclnsive.licensee in the absence of any

contrary agreement between the author and the non-exclusive

licenset·.

Assignment of 11 licence

Article 34. - ( l ) A licence may be assigned only with the author's consent. The author may not in bad faith refuse

such consent.

(2) If licences of the individual works incorporated in a

collection are assigned together with a licence of the collec­

tion (Article 4), the consent of the anthor of the collection

shall he sufficient.

(3) A licence may he assigned without the author's con­ sent if the assignment takes place as part of the total sale of

a business enterprise, or the sale of parts of the enterprise.

(4) An author and a licensee may by express agreement

vary the terms of a prior licence.

(5) If the assignmcul of a licence i permissible by agree­ ment, or pursuant to the provisions of this Act without the

author's consent, the assignee shall be responsible jointly and

severally for the dischargP. of tl11 " igno•·'s obligation , under

the licence with the author.

Grant uf non-exclu. ifle licences

A rticle 35. - (1) The possessor of an exclusive licence

may grant non-exclusive licences only with the author's con­

sent. No consent shall be reqnit·ed if an exclusive licence is

granted purely to safeguard the author's interests.

(2) The provisions of Article 3-J., paragraph (I), sentence 2, paragraphs (2) and (- ) shall apply acconlingly.

Authur\ particitwtion

Article 36. - (1) lf the author has granted a licence to another party on conditions the effect of which is to cause

the agreed consideration to be grossly disproportionate to the

income from the use of the work, having regard to the whole

of the relationship between the author and the other party,

the latter shall, when so asked by the authot·, be required to

assent to a variation of the agreement such as will secme for

the author an eqnitahle share of the income having regard to

the circumstances.

(2) Such claim shall be barred two years from the time

when the author receives knowledge of the circumstances

which give rise to the claim, and the author may not claim to

have received such knowledge after more than len years.

(3) The claim 11tay not be waived in advance. Expectancy

of it shall not be subject to jndicial execution; any disposition

concerning the expectancy shall he without effect.

Agrecment8 relating tu the grwll of licences

Article 37.­ (l) If au author grants to another a lice!ICC

to use the work, in case of donht the author shall be deemed

to have reserved the puhlicalion and exploitation rights in

any allaptation of the work.

(2) If an author grants to another a licrnce to reproduce

the work, in case of doubt the author shall he deemed to havt·

reserved the right of recording the work on visual or sound

fixations.

(3) If an author grants to another a licence to publicly

contmnnicate the work, in case of douht the licensee will he

deemed uot to have acquired the right to nse a screen, loud

speaker or other analogous technical devices to make the

conJIIIltnication perceptible to the public ontsidt· the cvt>11l

for which iL is i11Lendcd.

Contributions tu collections

Article 38. - (l) If an author consents Lo !tis work being incl11ded in a collection which appears periodically, in case

of doubt the publisher or editor shall he deemed to have

acquired an exclusive liceuce with respect to reproduction

and distribution of the work. l11 the absence of any contrary

agreement, the anthot· may, howevet·, by other means repro­

duce and distribute the work after a lapse of 011e year fro111

the date of its appearance.

(2) The second seutencc of paragraph (1) shall also apply

to a contribntion to a collection which does not appear pe­

riodically, if the author had no right of remn11eration for

such contribution.

(3) If a contrilH1lion is madu uvuilublc to u newspaper, iu the Hhsence of any contrary agreement, the publisher or editor

shall be deemed to have acquired a non-exclusive licence.

Should the author grant an exclusive licence, the author shall

have the right immediately after the appearance of the contri­

butiou, in the absence of any contrary agreentcnt, lo repro­

duce and distribute the work by other means.

.VIodificcaiolls of the worl.-

Article 39.­ (L) In the absence of any co11trary agree­ ment, a licensee may not altn the work, its title or 1he desig­

natioll of the author (Article ] 0, paragraph 1). (2) Modificatio11s in the work and its Litle which thr

author cannot i11 good faith refuse shall be permissible.

AgrPPIIIents as to /11ture worhs

Article 40.­ (l) Au agreement by which the author 1111­ dertakes to grant a licence of future works. which are not

specified in detail but only by reference to their nature, shall

be in writing. It may be tcnni11atetl hy either party after a

period of five years from co11clnsion of the agreement. Six

months notice of termination , hall he given, if no shorter

period has been agreed.

(2) The right of termination may not be waived in ad­

vance. Other contractual or slulnlory rigl•Ls of termination

shall remain nnaffected.

(3) Tf a licence of future works has bern granted in fnl­

filnJenL of tl1e agreen1ent, on tcnuination of the agreeutent

the proviSIOn con('erning works whil'h l1avo: not l•ee1 1 sn pp l ied up to that da te shall cease to have efl'ccl.

Niglrl of rerocutio11 hy ri'II. IJII uf llllfi·('X<'rci.H• !lrtic·le .Jl.­ ( l) Should a n cxclns ive licensee not CXL'I'·

cisc his rights therennder. or do so only i nadequately, and if thereby erions injury is cansed to the <l l l thor's lawful iu­ terests. the la ller may •·evoke the liecucc. This shall not apply if the non-exercise: o r i nndeqnate exercise is primarily due to circumstances which the au thor can be o·xpected to re111edy.

(2) The r igh t of rcvol'ation nHI)' not he exercised before the expirat ion of two years from the gran t ot· assignmen t o f the l icence, or, if the wo1·k i s suppl ied snbsec{l lently, from date of del ivery. Tn the case of a contribntiou to a ncwspapet·, the period shall be three months; for a periodical appear ing a t monthly intervals or less, s ix mon ths; and for contrihntions to other pe riodi cals, one yea r.

(3) The right of revocation 1nay he exercised only after the anthor has granted to the licenser. npou not ify ing h im of the proposed revocation. an extension of time snitable for adequa tely exercising the rights under the licence. No snch extension shall be reqnired i f the exercise of rights under the licence hy the licensee is i111 poss ible. or if he refnsc to exe•·· cisc such rights, or if uch an extension would euilangcr the author's primary i n terests.

{<1) The right of revoca tion 1nay uut he waived in nl­ v:wcc. ltf< exercise IIIli)' not (,c prcclnoled in arlvanee for more than fivo• years.

{5) A licent:e shall r•xp irc upon its ro·vueatiun ho·coming effective.

{6) The author sl1all imlc 111 n i fy tl1e p erson affected hy the revocation lo the exten t fa i rness so re\luires.

{7) The r ights and clain1s of the part ies pursnanl to o ther lcgid prov is ions shal l not he affected.

f<I11'11Cllli011 UJ' 1'1'11 111/ of cf11111g('i/ Clllll'ielilill

Article 42.­ {1 ) An an tho•· nn1y revoke a licence i f the work no longer reflects his views and he therefore can no longer he exp ected t o agree to the exp loi ta t ion of the work. The anthor's legul SIICCc,Sol· ( A rticle 30) may exercise snch right of revoca tio n only if he proves that the au thor prior to his death wo1dd have J.e,.u e n ti llcd to revoke and w<Js p rc­ ven tf'd from so do in g. or that he has done so hy testamentat·y disposit ion.

{2) The right of ro·vocation lii:JY uot he waivnl in ad1•auce. lts o·xercise nwy not be prcclndcd.

(:3) The a u tho •· IIIIISt eqn itahly indo: 1nnify t.l1c licensee. Snch iudPnlnification mnst cover al least the costs which the l icensee has incurred up to the dcchrra l ion of revoca t ion; however such com pnt <Jt ion shall not include costs a ttribut­ ahle to profits whil'h have theretofore heeu realized nnder the licence. Revocation shall !JCCOII Ie effective on ly i f the au thor rlo·frays sneh C'Osts or p rovido·s SO'o·urity l i lcrcl'or. The licensee shall notify the au thor within three nlonths afto't· the declaration of revocation of tlte amo un t o f his costs; i f he fails so to do, the ro·vocation shall become effpctive u p o n the expiration o f this pe riod .

NATIONAL LEGISLATION

{4) Should the author wish to n•,;n111e o·xploitation of lht• work after revocation, he shall he required to offer to tho• prcvions lieo·n o·c the same type of liceuce whjl'ct to rcasou­ ah lc condit ions.

{5) The provi:,;ionR of Article U. p aragra phs (5) and (7 ) , ,;hall apply accord i ngly .

Authors in Sl'n·icc• or 1111 colllllllSSW/1 Article 43.­ Tho: provisions o f this sHb-scction sha ll also

apply i f the au thor has created the work purs uant to a cou­ tract of service or a contract commissioning h is services, in the absence of anything to the contrary in the object or natnrc of the service or commission.

Alienation uf thl' original of the wurh

.'lrticle 44.­ {l) If t he anthor alieua tcs the origiual of the work, i n case of doubt, hr• shall uol be deemed, by so do ing, to have grauted a licence to the acqnin·r.

{2) The owner of the origiual of an ��·tistic work or o f a photogmp h shall he entitled to exhibit the work i n public, even i f i t has not yet been published, un .less the author has CXIHessly excluded this i n al i ena ting the original.

SECTION \I

Limilal.ions on copyright

Ad111inistmtio11 of justice aiLflJmblic safety

Article 45. ­ {l ) I t shall he permissible to make or cause tu he marie copit's uf a work for liSe in p roceed ings before a court, all arbi tra t ion tribunal, or a p11blic authority.

{2) Courts, arbitration tribunals and publ ic a uthori ties 111ay, for purposes of administration of justice and publ ic safety, reproduce portraits. or cause portr<rits to he repro­ duced.

{3) The distrihut iou. public exhihi tion and p ublic \:OIII· mllnicatiou of such works sh a ll hf' p ermissible under the same condit ions as for their reprodnct ion.

Collections frll' religious, sclwol ur instructional use Article 46. ­ ( L) Tt sh<rll lw pennissihle to incorporate

parts of works, literary and musical works o f smal l ex ten t, s ingle ar tis t ic works, or si ngle photograp hs, if they are al­ ready published in a collection which assemhles the works of a co nsidcrah le number of au thors and is iuteuded. hy its ua turc. exclusively for religious, school . or instructional usc. The purpose for which the collection is to be used shall he clea rly slated 11pon tho: titl e pagr or soltle other appropri ate p lace.

(2) Paragn•p h (l) shall apply lo lll llsieal work i ncorporat­ ed in a collection i n tended for musical instruction only i f the collection is i n teulled for mn ic<d iustruction in schools, ex­ cluding school�; of l l l l lsic.

{:1) The reproduction 1nay COIIIniCIICt' only if the i n lcn· lion to exercise the rights accorded under paragraph (l) has hccn communicated h y registered let ter to the au th or, o r if his permanent or temporary residence is unkuown, then to the exclusive licensee, and two weeks after despatch of thr

256 C()/'l'U/c;//'1' - UJo:U:illlii·:N IIJMi

letter have elapsed. lf the pennanent or temporary address of the exclusive licensee is also unknown. the communication can be made by publication in the Bwl(/e:;on=eiger (Official Bulletin) .

(4) An author ntay prohibit reproduction and distribution when he can no longer be expected to agree to the exploita­ tion o f the work because the wq ·k no longer reflects his views and he has for that reason revoked any licences to which he had theretofore consented (Article 42) . The pro­ visions of Article 136, paragraphs ( 1 ) and (2), shall be ap­ plicable.

Sclwol broadcasts

Article 47. - (l) Schools and institutions for teachers' tntining and advanced training may produce copies of single works which are included within a school broadcast by trans­ feLTing the works to visual or sound records. The same shall apply to youth educational centres.

(2) The visual or sound records may be used only for instructional purposes. They must be destroyed not later than the end of the then current school year, unless an equitable remuneration has been paid to the author.

Public speeches

Article 48. - (l) It shall be permissible l. to reproduce and distribute in news1>apers, periodicals

and other printed media of information which mainly reconl current events, speeches about questions of the day made at public meetings or in broadcasting and to communicate such speeches to the public;

2. to reproduce, distribute and communicate to the public speeches made at public discussions of State, communal or religious bodies.

(2) It shall n o t however be pennissihle to reproduce and distribute the speeches mentioned in paragraph ( 1 ) , item 2, in the form of a collection containing p redominantly speeches by the same author.

Press articles and broadcast conunentaries

A rticle 49. - (l ) It shall he permissible to reproduce and distribute single broadcast commentaries and single articles from newspapers and other pdnterl media of information of this kind, and publicly to communicate such commentaries and articles, if they concern p olitical, economic or religious questions of the day, and if they do not contain a statement reserving rights. The author must be paid an equitable re­ muneration for the reproduction, distribution and public com­ munication, unless short extracts from a number of commen­ taries or articles are reproduced, distributed or publicly com­ municated in the form of a survey.

{2) It shall be pe rmissible, without limitation, to rep ro­ duce, distribute and publicly communicate 111iscellaneous in­ formation relating to facts ot· news of the day which have been publicly disseminated by the press Ol' broadcast; this provision shall n o t affect any protection granted hy other provisions of law.

Visrwl and sou11d reporting

Article 50. - For the purposes of visual ami sontHI re­ porting on events of the day by broadcast, or film, and in newspapers ot· periodicals which mainly record current events, works which become perccptible in the course of the events which are being reported on may he reproduced, distributed and publicly connuunicated in so far as their inclusion is justified by the purpose of the report.

Quotations Article 51. - To the extent re1(11ired by the purpose, it

shall be perniissible to reproduce, distribute and publicly communicate

l. single works' which have already been published, included in an independent scientific work in order to clarify its contents;

2. single passages frotn previously published works, quoted in an independent literary work;

3. single passages from a musical work which has already been published, quoted in an independent musical work.

Public communication

Article 52. { l ) The public communication of a work- which has already been published, shall be permissible,

l. if the communication serves no gainful purpose on the part of the organizer, spectators are admitted free of charge and, in the case of the recitation, representation, or performance of the work, the performers {Article 73) are paid no special remuneration; if, howevet·, the event serves the gainful purpose of a third par ty, the latter shall pay the author an equitable remuneration for the communication;

2. if the communication takes place at a religious servtcc, a religious celebration o r any other organized occasion of the churches or religious societies recognizedin public law; the organizer shall, however, pay the author an equitable remuneration for the communication, unless the conditions o f paragraph { l ) arc satisfied.

(2) Public stage performances, broadcasts, a n d public presentations of cinematographic works shall in a l l cases be permissible only with the consent of the copyright owner.

Re{Jrocluctiun for JWrsoJHti u.se

Article 53. - ( l ) It shall he pennissiltle to make single copies of a work for personal use.

(2) A person authori7.ed to make such copies may also cause such copies to be made hy another person; however. this provision shall apply to the reproduction of a work on a visual or sound record and to the reproduction of artistic works only i f no payment is received therefor.

{3) The copies may neithe1· be distributed nor used for public communication.

{4) The recording of public recitations. represcutations or perfonnanccs o r presentations of a work by visual o r sound fixations, the execution of plans or sketches intended for an artistic work and tl1e copying of a work of architecture al­ ways require the consent of the copyright owner.

(5) lf frona the nn turc o f the work i t is to he expected that i t will he reproduced for personal we by the fixa tio u o f broadcasts ou visual o r souud records. or by trausfer i ng from ont• vis u a l or sound record to another, the au thor of thl' work shall havt• the right to deanand from the ua<unafactun·r o f e<p a ipn acut suitable for making such reproductions a renlll· uera t ion fo r the opportunity provi led to auake such repro· ductiou:;. Auy person who for commercial purposes i u troduces or re-iutroduccs such equipment within the jmisdictiou o f thi · Act shall he joi u tly responsib le with the uaaua a facturer. This ri gh t shall not exist if, from all o f the circumstances, it appears probable that the equipment will n o t be used within the jurisdiction of this Act for the said purposes. This right naay only be euforced through collect in g societies. By way o f remuuerat ion, each copyright owner shall h e en titled t o a u e<[uitable part icipat iou i n the p roceeds realized by the manu­ facturer from the sale of such equipment; the total claims of all copyright ownet·s, iucluding those coming within Art icles 8,[, and 85, paragraph {3), and Article 94. paragraph (-1-). shall uot exceed five per cent of sn ch proceeds.

Rc•tJrotfucticm for other intemal uses

Article 54. - ( l ) It shall be permissib le to make or to cause to be naade single copies of a work:

l . for ones own scientific use , i f and to t h e e x t e n t tha t such reproduction is necessary for this purpose,

2. to he iucludetl in intemal files, if an;l to the exteut that rep roductio n for this purpose is necessary for this p ur­ pose, and if ones own copy of the work is used as a model for the reprod uction,

3. fo•· oues own iuformatiou conceruiug cnrrent ('Vent.:. in tla case of a broadcast work,

4. for other in terna l uses, (11) with respect to small parts from published works o r

siugle articles which have heeu published in news­ papers or periodicals,

(h) iu the case of a work which ts out o f priut and the c·opyrigh t owue r cannot be traced. If the copyright owuer cau be tt·accll and the work has been out of priut for more than three years, he may refuse his couseut to such reproduction only for a valid reason.

(2} If the reproductiou is for commercial pu rposes on the part of the persou authorized to reproduce the work, he shal l pay to the author an equi table remtanet·atiou.

{3) The provisions of Article 53. paragrapll!; (3) and (4), shall apply as applieahle.

HetJrtl(lll l'liPtt hy browlcasli11g orga11i=atious

Article 55. - ( l ) A hroadcasting organization licensed to broadcast a work shal l have the right to reconl the work h y mcaus o f i ts o w n facil it ies o n visual or sonnd fixations i u ordct· t o usc them ouce for broadcasting over i t s trausuaitters or ltcarn senders. Such fixations must be destroyed not later than one mouth a fter the first broadcast of the work.

(2) Visual or souud records which at·e of excep tional docunaeutary value nc•·d uo t be destroyed i f they are plaeed in an o f ficial archi ve. The a u thor shall lw not i fied withou t d td a y of their deposit i n snch a rchiv e .

NATIONAT. LECISLAT/Oi\' 257

Reproduction a11tl pulilil' ccmttllllllicatioll by colluuercial

enterprises

Article 56. - { l ) Commercial cuterpriscs which sell or repair visual o r souud records. o r cquipmeut fo r their mauu­ facture or commuuicatiou. o r for rcceptiou of l)l'oadcasts, may record works on visual or souud fixatious aud may publ icly <·omuauuicatc such rcconled or broadcast works, iu so far as this rnay he necessary to exhibi t such cquipmeut and devic<· to the public or for the repair thereof.

{2) Visual or soaaml record produred pursuant to para­ graph ( l ) must be destroyed im rue tl ia tc ly .

Accessory wor!.-s of secondary itn portanee

Article 57. - It shal l be penuissible to reproduce, distri­ bute and p ublicly comma11 a icale works i f they may be regarded as accessories of secondary importance with regard to th(' actual subject of the rcprodnctiou, distri l aution or public com­ u auuicatiou.

//lustrated catalogues

Article 58. - It shall be permissible to reproduce and distt·ibute artistic works which arc e x h i b i t e d iu publ ic or i n ­ teuded for public exhibit iou or auction in catal ogues which are issued by the organizer in order to conduct the exhibit ion or au !' t ion.

Worlc. exhibited 011 pu blic ]Jremises

Article 59. - (l) It shall be permissible to reproduce, by means of pa in t ings, drawings, photographs o r cinematography, wot·ks which are permanent ly placed on public ways, streets or places, and to distrilJIIte and pub l icly communicate such cop ies. With re peel lu works of architecture this provision shall be applicable only to the external view.

( 2 ) It shall n o t be pe nuissiblc to reproduce in oue work of architecture a work incorporated in another work of archi­ tect u r·e.

Portraits

Article 60. - ( 1 ) The persou ordering a portra i t or Iris legal successor may reproduce it or ca use i t to be reproduced hy photograph. II' the portra i t is a photograph, reprocluctiou otherwise thau hy photography shall he penu issihle. The copies may be distributed without paymcut.

(2) The same r igh ts shall he enjoyed by the persou por­ trayed, or after his death by his fllmily, iu the case of a por· trait created on commission.

(3) Fanaily in the sense o f paragraph (2) shall mean the spouse a n d children. or. il ' tla\'1'1' art' uci ther spouse uor l'hildreu. the pareuts.

Colupulwry Lirent'P for the tn·otluctiull of SIJtllld records

Article fil. - ( 1 ) l f the au thor of a musical work has grauted a liceuce to make souud records thet·eof for cona­ mercial p u rposes, a1 1d tu I'CJHoduce aud distribute the same. after p ublication o f the work the au thor shal l be req11ired to grant a similar liceuce suhjct;t to reasonable conditions to auy other protlucer of souud records whose head offict; or domicile is within the jurisdictiou of this Act; this p ro v is io n shall no t app ly if tla e right is lawfully adua iu istn·<l hy a col­

!58 f.OI'l"R/G/1'/' - m:u·:,\1/lU! 1%5

lecting society nor hall i t lw appl icab le in tl tc event that the auth or cannot be expected to agree to the further exploita­ tion of the work Leca t tse it no Iunger reflects his views and for that reason he has revoked any exisling licence which lw had there tofo re granted. The anlhot· shall not he required to l icence lhe work for ttse in LIH· prod ndiot t ol' a cinl·nta to­ graphic work.

(2) With respect to a producer · ol' 50ut td records whose , head office and dom icile are not within the jurisdiction o f this Act, the provisions of paragraph ( 1 ) shall h e app l icable only if, as is evidenced hy a n o tification front the Federal Minister of Jus t ice in the Bunde gesi'Lzf,[all, a corresponding right is granted by the State in which his head office or domi­ cile i s s i tnated to p rod ucers of sound n:co rds whose head office o r domicile is within the jurisdiction o f this Act.

(3) Tlte l icence to be granted t tnder the foregoing pro­ visions shall be effect ive only within the jurisdiction of this

Act and for exportation into countries i t t which the work is not protected agaiust sonud recording.

(4) If the a u th o r has granted to another person an ex­ clusive licence to f ix the work for commercial purposes on sound reconls ami to rep rodul:e and distribute snch sound records, the foregoing provisions shall he Hpplicable except tha t the exclusive licensee shall he required to grant the

licence described in paragraph ( l ) . (5) The forego ing provisions shall b e app l icable b y ana­

logy to a l i terary work which is employed as the text of a mnsicH I work, i f the author of the literary work has granted to a producer of sound records a l iceuce to record the work iu accompaniment with the musi<'al work, and to reproduce a 1 1d distriiHIte such records.

(6) Courts sitting w i th in the district in wh ich the head­ quarters of the Patent Office is located slndl have jurisdiction in ma tters relating to the granting of a licence if the author, or, in the case of paragraph (4), the exclusive licensee, has no legal domic ile within the area covered b y this Act. Tem­ porary decisions m a y he issued, even if the cond itions spe­ cified in Articles 935 and 9-1 0 of the Code of C ivi l Procedure are not fulfil led.

(7) The foregoing p rov is ions shall uot apply i f the licence deRcribed in paragrap h ( I ) has been grau tcd o u l y for l i te ptlr­ pose o f producing a c inem a tographic work.

l'rohiuition of m orlijil'ations

Article 62. - ( l ) Iusofar as the use of a work is per­ ntissible under the p rovisious of this Section, no modifications may he made iu till ' wo rk. Artidc 39 hall he applicable to

the foregoing.

(2) Insofar as the p t l l·posc ol' the l t><e 1nay dl'mand. i t shall l1e perm issible to make trat ts lat ions and snclt modifica­

ti ons to the work as amount 1ncrrly to I'X l racts or to trans­ positions into a t to thcr key or pi tch .

(3) With resped to ar t ist ic works aud pho tographs, trans­ positions iuto a d ifferen t scale aud other modifications of the work shall he pe nniss ih le to lh1· exlenl required hy the 1uethod of reprod1tetiou.

(-l) Tu tl11· case of eollectious for rel i gious, sd10ol aud i us lrnctioual use (Art icle cl6) , in addition to the modifications penni t ted IIIHier ( 1 ) to (3) . St ich modifications of l i terary works shall he permissible as are necessary for religions.

school and instructional tiSC. Snclt modifications, however. shall rcquin, the consent o f the author, or after his death of lti8 legal successor (Art icle 30) . i f the latteL· i s o f the author's fa1uily (Article 60, p aragrap h 3), or has acq uired copyright hy v i rt t 1c of testamentary d isposi t ion. Consen t shall be regard­ ed as granted if the author o r his successor does not raise objection wi thin a month of l to t i fil'alion of the proposPd 1nod if ication .

lndiration of source

Artic/1' 68. - ( L) J f a work or part of a work is l'cpro­ duced pursuant to Article 45, paragraph (1) , Ar ticles '16 to 48, 50, 5l, 58, 59 and 61, the sou rce must in all cases IH' clearl y inllicated. In reproducing complete l i terary works or comp le te musical works. the publishing house which pulJ­ Iished the work must he stated, in addition to the author, as wel l as any o1nissious or other modifications to the work. No obligation to indicate sources shall ex is t if no source is given e i ther on the copy o f the work nsnl or with the comrnunica­ tio n of the work, and if uo SOttrce is otherwise known to th e person au thorized to reproduce.

(2) Iusofar as the provisions of this Sectiou permit the

public communication o f a work, the source must he cl1·arly stated i f staudard prac t ice so requires.

(3) If pursuan t to Article 49, par<tgraph ( 1 ) , an article

from a uewspaper o r other printed medinm of information o f this kind is reproduced in auo the r newspaper or other such printed medium of infonuation. or is broadcast, in ad­ di t ion to the antltor who is designa ted in the source materiaL mention mnst also in all cases be L1lade of the newsp aper or

otheL· p rin ted source from which the article was extracted; if some other newsp ap er or other printed medium of informa­ tioH is me11t ioned there as the source, such other uewspaper

or other priuted source must be mentioned. H p ursuan t to Article 49, pa ragrap h ( L ) , a broad cast commentary is repro­ duced in a newspaper or iu another p r inted medium of in­ formation, o r in brondcast, the broadcasting organization

wh ich Lrausmitted the eotnntenlary, as well as lhe tt<tnle o f the a u thor. shall alway;; l1e 1nentioued.

SECTION VII

Duration of copyright

Geneml

A r ticle 64. -· ( 1 ) Copyr igh t sha l l c x p t re seveuty year> after Li te author's death.

(:2 ) I f a posthu mo tiS work is fi rs t publicly dissemi nated 1 1 10n · than six ty, hu t prior to seve n ty, years after the auth or\ death, tlw cop yrigh t thc·reiu >l >al l expi n· leu y<'ars af ter sttcl > f irs t p u h li l' d iRRI'nt iu a tio ll .

Co·llllllrnrs

Art icle 6.5. - If a :npyrigl1t j ,; ow11cd l>y two or 1 1 10 1'1' co· au th or,; ( A nicl , . 8). i l shH I I expin· Sl'Vl' l l ly years al'tl'r lhl' tl c·a l h o f t h1· lasl , ;urviving <ll tlhor.

7a. -

--

·f lltii/)"11/IIIIS 11111/ JIS('flrfiiii)"IIIIIIIS 11'111"/is

Arl icll' N1. -­ ( I ) I f the a 1 1 thor· ln1 1 · 1 1: 1 1 1 1 o ' or a k11ow11

ps. · 1 1do11ym has 1 1 0 t hPcll c l o" ig 1 1 a l o·d e i ther as pruvic l , · r l i n Article 10. paragraph ( 1 ) . o r i n COI I I I I 'Ct ion wi th the p1 1hl ir COIII I I I IHiication o f the work. l 'opyright shal l expire even t)'

years after the p11bl icat ion of tlu' work.

(2) The d1 1 rat ion of copyright sh'all l 1 1 · caknla ll'd ai'Cord­ ing lo A rticles 6-1 and 65 al.<o in thf'

. case of paragraph ( 1 ). if

1. with in the period sperified in paragraph ( I ) the au thor· rcai iHIIH · or known pseudony m i i u dicated in ronfonnity with Article ] 0, paragraph ( 1 ) . or the author otherwise becomes k nown as the creator of the work.

Z. wi th i n the pc1·iod spec ified i n paragraph ( l ) the author":; real name is snhmit ted for rcgiti lrat ion in the Regi tl·r

of Authors ( Ar t icle 138) , 3. the work is pnhlicly d isseminated on ly af ln the au thor"s

death.

(:-l) A s11 l 1 1uission for regi tra t iun p1 1rs twnt lo paragraph ( 2 ) 1 1 1ay he 11H1de hy the author, or af ter his dea th hy h i s legal s11ccessors (Article 30) or by his executor ( A rt icle 28. para·

graph 2) . (-1) The foregoing pro ' isions h<dl no I app ly lo a r t istic

works.

Scri11l u•orlos

Article o7. - [n the case of works p 1 1 ld ished i 1 1 parts which are nol elf-co n ta ined (seriab), p 1 1 rsuau t lo Article 6-1·, paragraph (2), and A rticle 66. p a ragraph (l ) , the calc1 1 lat ion o r the term o f protcctio1 1 hall ill' governed hy the date o f publ ica tio1 1 of the f ina l i 1 1s ta lnH' I I I.

l·'lwlogrrr[Jhic it'urlis

A r ticle 6H. -­ Copyright i n photographic work slndl ex­ pire twenty-five years af ter p n hl ication of the work ; huw­ t·vcr, i t shall exp ire twenty-five years after creat ion i f the work has no l prev iously been pnhl ishcd .

Colculruioll of JWriotf.,

Arlidc ()I.J. Till' periods eovcred by thi, 'ec l iou shall CUII I IHeucc as from the expiry o f t h e calendar year i n which the even t which determines the begin n ing o f the period has occurred.

PART I J

Related Rights

SECTION I

Protect ion o f certa in editions

Sciellli/ic f'r!ilitms

A r1idl' 7U. -­ ( L) Ed i t ions whieh c.;ow;isl of non·cup y­ r ighted works or texts hal l eujoy a protect ion aualogot l:, to that provided purs11ant to the provis ions o f Part I i f they represent the result of scient if ic u nalys is and differ i n a signific; n t 1 1 1 <U 1 ner fron1 p r e v i o 1 1sly know n works or tf' x ls.

(2) The r ight hall hl· enjo yed J,y tht· a11 t l tor of 1 1 1 1 ' edi t ion .

NATIONAl. U:GtSLATJON 259

thneof if no publ ica t ion otTn r,; prior l h l'rl' l o . Tho· pniud

shal l he cakulated in t:O I I fonni ty wi th Art icle o9.

l 'uldicoliou of fl"·'illlUII OII-' tt•ur/;s

/lrlicl£' 7 1 . - (L) Auy per:<on who causes a work whieh has not prcviol loly been p1 1hl ished. lo l 1e published with in the

ju risdi ct ion of th i ,.; Art a f ter the e:-.p i ry of the t'opyright sl tall

havt· the excl1 1" ivc righ t to rt'prodn ct• and distl ' ihntr the work and to IISl' copies of tht• work for pnhl ic comlnll u ical ion . Tht· tianw shal l ap p l y lo works which have uot pn·vionsly IJl' < ' l l

pnhl i lwd and which were never pro tected wi th in the juris­ dict ion of this Act. hut whose au thors have h•·•·n dead lougcr thau seventy year,;. Art iclf's -J. 1 5 to 2-L 27 and •J.S to 63 shal l apply as appropria lt'.

( 2 ) The right shall 1,. trau:;fnalde. (:{) The 1·ight shall expirP len years after the publ icat ion

o f the work. The period sha l l he calculated 11 1 confon11 i ly

wi th Artick 69. SECTIUN I I

P•·otcction of photol,':raphs

Arlicle 7:!.. - ( l ) The pruvisious of Part 1 appl icahle lu photographic works shal l he appl icable hy analogy to photo· graphs allll to product created hy a process analogous to photography.

(2) The right as stated i 1 1 paragraph ( I. ) hal l l 1e enjoyed

hy the photographer.

SECTION I l l

Proleelion o f the pedormer

f',r/urlller

Arlicle A performer wi th iu tile wean ing of this Act shall he <1 per on who recites o t· performs a work o r part i ­ c ipates as perfor1 1 1er in lliL· rec i tat iou 01· perfonnaucc o f a work.

Trllrtsmi. iull hy scre('ll or !tJud tJett!.·cr

Arliclc 74. - A perfonnancc may he publicly coJII I I I I I I I I · c.;ated hy screen. loudspeaker or s i 1n i lar technical devices o n t­ s ide the locat ion where it takes place only w i tlt the consent o f the performer.

N('/'mrlut·liutl

Arlif'!, 75. - A performa nce 1uay he fixed 0 1 1 v i s n a l or sou1 1 1 l reconb nuly with the conscut of the performer. The vi ual or sound records 111ay lw reprotlnced on ly with his COIISCill.

1/ 1'11111/Cft.,liIIg

Arlich· 76. ( 1 ) A pcrfon11ann· n.ay he l1 1 ·oadcasl on ly wi th tin· COI ISCI I t o f the )I I ' L'fOI'IllCI'.

(2 ) A pt•rfonllance which has been l awf 1 1 l ly fixed on visual or sounll reconls 1uay he broadcast w i thout the consent of the performer if such records have previously been p ulJ­ I ishcd; howt·vt•r. i n wch circumst:l l lces the performer shal l lw paid an erpt i l a hle re11 1 n n o : r a t ion.

Pu!Jlic cumnlullinrlirlll

(3) Tho• riglt t shal l r ·xpire t o ·n )'l'ars af ter pn!J i ical in l l of ,· lrlide 7 7 . - l f a pcrfonnanco· is pnhl ic ly COIII I T IUIJ icated tl11 ed i t i on ; however. it shall exp i re ten years after creat ion 1 hy nteans of viwal or s o n 1 1 d record or if a broadcast per·

260 /)f(."Jo:il/11/·:r. f')(,,C,

l'onuaucc is puhlic.ly coutnl l t l l icated, the performer shall have the right to an equi table remuttcrat iou with respect thereto.

As:;ig11111 en/

Article 78. - The performer 111ay assign to third parties the rights and privi leges which arc granted to him p u rsuant to Articles 74 to 7 7 ; however, he shall nevertheless also have the right to give the consents provi(led for in Articles 74, 75 and 76. paragraph ( I ) .

f1erf111'11H'I'S i n Sl'/'I'IC(' Ill' 11/1. CIIII/1/IISSIIIn

Anicle 79. - If a performer has given . a perforutance pursuant to his obligations under a contract of service, o r contract commiss ion ing his services, i n the absence o f any contrary agreement, the ex ten t and condit ions under which the entployer or party commiss ioning the performance may use i t, or authorize others so to do, shall be determined by refereuce to the ua ture of the service or commissiou.

Cftural, orche:;tral aiLll stage {lerfvmwnces

Article 80. - ( 1 ) In the case of choral, orchestral and stage performanees, pursuant to Ar ticles 74, 75 and 76, para­ graph ( 1 ) , iu add i ti o n to the consent of the soloists, conduc­ tot· and producer the consen t of the· elected representatives of the part ic ipat iug performer groups, such as choir, orchestra, ballet and stage companies shall suffice. If any group has n o such re1nesentative, the consen t o f the performers who are i ts members shall be replaced by the consent of the group l ad r.

(2) For the puqlO e of as rting the rights, with the ex­ cep t ion of the righ t of consent, arising from Articles 74 to 77, in the case of choral, orchestral and stage performances the represen ta t ive of the performer group committee or, if n o represen tative exists, the leader of the group, alone shall be au thorized to act i n the name of the part icipat ing performer groups. This power may he transferred to an au thors' collect­ i n g society.

Prot,ection of the organizer

Article 81. - If a performance is giveu under the au p iccs of au en terprise, then for the p urposes of Articles 74, 75 and 76, paragraph ( 1 ) , the consent of the proprietor of the e n ter­ prise shall he required i n addit ion to tlte consent of the per­ former.

Dur11tion of rig.,l ls

Article 82. - If a performauce is f ixed on a vi ual or souud record, the rights of the performer and of the organiz r shall expire twenty-five years after the p11hl ication of the record; however, such rights shall expire twen ty-five years after the performance if the visual or sound record has n o t previously been published. The per iod shall h e calculated i n con formity with Article 62.

l'mt.ection agailt. t distort.ion

Article 83. - { 1 ) The perfonncr shall have the right to prohibit any distort ion or other alteration of his performance of such nature as to in jur his prestige or reputat ion as a pe1·former.

(2) 11' a work is p erl'onnrd hy a group of pcrformcn;, <H.:h one in the exercis<: of this right tuust take i n to account

the legit i tnate i n terests of the others.

{3) The 1·ight shall expire with the d ath of the pcrfonner; however, it shall expire twen ty-five years after the perfornt­ auce if before that date the performer has d ied ; the period shall be calculated in accordance with Article 69. After the performer's death the right shall be enjoyed hy his uext of k in (Article 60, paragraph 3) .

Li111it.lt lion o f rights

Article 84. - The provisious of Section V1 of Part 1, with the exception of Article 61, shall apply as appropriate to the rights enjoyed by the performer and the organizer i n conformity wi th this Sect ion.

SECTION IV

Protection of the producer of sound 1·ecords

Right of reproduction lllld distribution

Article 85. -­ ( l ) The producer of a sound record shall have the exclusive right to reproduce aud distribu te the sound record. If the sound record has been produced by an e uler­ prise, the proprietor of the enterprise shall he regarded as the producer. The right shall n o t arise by reason of the re­ production o f a sound record.

(2) The right shall expire twenty-five years after pub l ic<t­ t iou o f the sound record; however, i t shall expir twenty-five yeat·s after production if the sound record has not previously been puhlished. The period shall be calculated in confonnity with Article 69.

(3) The provisions of Section VI of Part 1, with the ex­ cept ion of Art icle 61, shall apply as appropriate.

Right of [Wrticiwllion

A r ticle 86. - If ;1 pub l ished sound record on which a performance has been fixed is used for public conununicat ion. the producer of the sound record shall have a right as against the performer to an equi table participation in the remunera­ t i on which the performer rcce1vcs pursuaut to Article 76, paragraph (2) , and Article 77.

SECTION V

Protection of the broadcasting organizatio n

Article 87. - ( 1 ) A hroadcasti11g organization shall ltave the exclusive right,

l . to rebroadcast i lti broadcast, 2 . to fix its broadcast on visual or sound records, make

p hotographs of its broadcast, and reproduce such records or photographs,

3 . to publ icly communicate its television broadcast i n places accessihle to the public, against paytllt' l l t of an entrance fee.

(2) The right shall expire twenty-five years after the broadcast. The period shall he calculated in conformity w i th Article 69.

'

(3 ) The provis ions o f Section VI o f Part I. with the c ­

ccption o f Art icle 47, p a ragraph (2), sen tence 2. Article 53,

paragraph (5 ) . and Art icle 6 ] . shall apply as appropriate.

PART l l l

Special Provisions relating to Cinematography

SECTION I·

Cinematographic works

The righ t uf cinematogra(lhic acla(llalion or re(lroduction

Article 88. - ( l ) I f an author grants to another person the right to make a cinematographic adaptat ion or reproduc­

tion of his work. in case of doubt this grant shall constitute

exclusive licences:

l . to use the work e i ther in its original fonu, or an adapta­ tion o r transformation thereof made for the purpose of

producing a cinematographic work;

2. to reproduce and distribute the cinematographic work;

3. to publicly present the cinematographic work i f i t il' in­

tended fot· such presentat ion;

4. to broadcast the cinematographic work hy television i f i t i s intended for such bt·oadcast;

5. to expl o i t t n 111slatious and other cinema togn1phic adapta·

tions or transformations of the cinematographic work to

the same extent as may be done in the exploitation of

the work i tself.

(2) In case of doubt, the rights specifietl in paragraph (l) shall not be deemed to include the right to remake the cine­

matographic work. In case of doubt, the author shall be deem­ ed to have the right after the expirati o n of ten years from the

execution of the contract to u tilize his work hy other means

for cinematographic purposes.

(3) The foregoing provisions shall apply as appropriate

to the protective rights specified i n Articles 70 and 7 1 .

l<£ghts in t h e l'ill.ematugrll!Jhic worh

Article 89. - ( 1 ) Any person who undertakes to p a rti­ c ipate in the productiou o f a cinematographic work and by

so doiug acquires a copyright in the cinematographic work, in case o f doubt, shall be tleemed to have granted to the pro·

duce1· the exclusive right to ntil i:r.e the cinematogn1phic work

as well as the tran lations, and other adaptations or tn111S· formations the1·eof, in every known n11111ner.

(2) If the author of the cinematographic work had in ad·

vance granted to a third party the rights specified in para· graph ( I ) , he shall , notwithstanding, in all cases retain the

power to gra n t these rights to the filn1 producer with or

without l imi ta tion.

(3) The copyrigh t 11 1 the works used to produce the cine·

li latographic work, such as the novel. the scenario and the

music contained 1 11 the cinematographic work, shall remain

unaffected.

Limitation of rights

Article 90. - The p rovisions concerning the need for the

author's consent to the assignment of licences (Article 34) <111(1 to the grant o f nou-exclusive licences (Article 35), ami also

NATIONAL LEGISLA1'/0N 261

the right of withdrawal by rea on of non-exereise (Article 41) ami changed conviction (Article -1-2) shall not apply to the rights specified in Article 88, paragraph ( l ) , i tems 2 to 5, and

Article 89, paragraph ( l ) . The author of the cinematographic

work (A rticle 89) shall have n o claims b y virtue of Article 36.

Rights in phutogrrt11hs

Article 9l. - ln relation to the exploitation of a cine· m a tographic work, the producer thereof shall be deemed to

have acquired the righ t to exploit photographs which were created in connection with the production of such ciuemato·

graph ic work. The photographer shall have 1 10 rights in this

respect. Performers

A rticle 92. Perfonners who participnte 1n the prodnc· Lion of a ciut:matographic work or whose performances are

lawfully used in the production of a cinematogt·aphic wo1·k

shall, w i th respect to the exploi tation o f the cinematographic

work. not be entitled to rights pursuant to Article 75, 'sen­

tence 2, Articles 76 aud 77 .

Protection against distortion

Article 93. - The a u thors of a cinematographic work and

of works used in its p roduction, as wel l as owners of related

rights who participate in the production o f the cinemato·

graphic work or whose contributions are used in its produc·

tion may, with respect to the production and exploitat ion of

the cinematographic work, prohibit (pursuant to Articles 14

and 83) only gross distortions or other gross injuries o f their

works or o f thei r contribution . In the exercise of this right

they must take i n to account the respective legit imate interests of the other persons accorded this right as wel l as the legi·

timate interest of the producer of the cinematographic work.

Protectiun of the producer of cinematographic works

Article 94. - ( l ) The producer of u cinematographic

wo1·k shall have the exclusive righ t to reproduce the visual

record or the visual and sound record ou which the cinemato· graphic work is fixed, and t o distribute it, and util ize i t for

p ublic presentation, or for broadcast. Mo1·eover, the producer shall have the right to prevent any distortion o r shortening

o f the visttal or visual all(l sound record which may prejudice his legit i 1 1 1ale interests therein.

(2) The right shall he transferable.

(3) The right shall expire twenty-five years after the pub­

l icat ion of the visual or visual and sound record; however, i t

shall expire twenty-five years after production o f the visual

or visual and sound record if it has not p reviously hceu puh· lished.

(4) The provi. ions of Section V I of Part I, with the cx­

cept iou of Article 61. shall a p p l y as appropriate.

SECTIU II Cinematog1·aphic films

Article 95. - Articl s 88, 90, 9 l , 93 and 9-J., shall apply

as appropriate to sequences o f images and to sequences of images and sound which arc not protected a s cinematographic works.

Y9. -

262 c:orrNt C //7' - m:r.t:Mt11\li 196:.

PART I V

Joint Pt·ovisious for Copydght and Helated Rights

SECTION I

P•·oh ih i t ion of exploita t ion

Ar1irle Y6. - ( I ) U nlawfully made copies ma) he · n • • i thn distributed nor ust'd for publ ic coinmunication.

_ (2) Unlawfully made lH·oadcnsts may not be fixed on vis­

ual o r ouud records o•· publ icly communica ted.

SECTION I I

lnf•·ing;ement o f rights

I . Ci\'il law [H'O\'isions; l gal l'l'COIIJ'SC

Acliotrs for illjtt llctivll all({ damages

Article 97. - (1) As against any person who infringes a

copyright o r any o ther right protected by this Act, the injmed

party may bring an action for injunctive relief •·eqniriug the

wrongdoer to cease and desist i f there is a clanger of repeti­

tion of the acts of i n fringement, as well as an action for

damages if the i n f ri ugem en t was intentiom1l or the •·csul t of negligence. In l ieu of damages, the injnt·ed party may recover

the profits tler ived by the infringer from the acts of infringe­

ment together with a detailed accou nt ing reflecting snch

profits.

(2) Au thors, p e r s o n s havit'1g ··ights in scientific editions (Article 70), photographers (Article 72) and performers (Ar­ ticle 73) , may, if the infringement was i n tent ional or the result of negligence. t·ecover, as justice may rell'lin::, a monetary in· demnity for the injnry caused t o them even if n o pecuniary loss hns occurred. This right is not assignahle unless it has

heen acknowledged by con tt·act or unless a legal action assert­

ing the r ight has previously been comme11ced.

(3) Rights ariRing fro111 other lega l provisions shall uot he affected.

Righ t of destructio11 and simil11r 11/Pa.mres

Ar1icle 98. - ( 1 ) The injured party may require the de· structiou of all copies that have been unlawfully manufac­ tured or un lawfu l l y distril tn tt'cl or which are in tended for ntdawful distr ibntion.

(2) The injured party ttwy further ret [ l lire that the equ ip­ lneut such as moulds, pla tes, engraving stones, blocks, stenci ls and negatives which were destined exclusively for the unlaw­ ful production ol' copies he rendt>red unusalde, or, i f this is

not practicable, destroyed.

(3) I f the nppearance ol' the copies o r the equipment enus· ing the iufringcment can he modified i n some other fashion,

i n partic1dar so as to establish by subsequent alterations that the work n o longer constitutes an infringen1ent of the rights of tlte injnred pnrty, i u such case wch injured party may only require that such lllt'<l S n r e s he n n d e rtakcu as lo achieve this effect.

(4) The t u r a s • • •·cs proposed in paragraphs ( l ) to (3) shall a p p l y o n l y to copies and cqnipn1Pnt which arc the propt'rty

of the parties concerned in the u u lawfn l makiug or d i :; tr ihn ­ tiou of the copies, or their heirs. These measures may be exrc1 1 tcd only after ownership has been lega l ly <"Onfinlte<l.

l<igh t of t!t•lirery

Arlicle ( I ) I tt l ieu o r the llll'<ISII rcs pro\ idecl for i u Article 98, the injured party •uay require t h a t t h e copies and equipment he delivered to him, in whole or i n p a l'l, for an equ i table price which sha l l not exceetl the product ion cost.

(2) The provisions of Art icle 98, paragraphs (3) and (- 1·) . sha ll a p p l y a s appropriate.

Respollsi[,i/i t)' of the fJI'Ufll'iPivr 11/ 1111 ellll?rfll'ise

Article 100. - H a righ t protected under this Act has been infringed by an employee or agent of an enterprise i n t h e course o f h i s du ties t o such enterprise, the i njmcd party may also assert the rights provided in Ar ticles 97 to 99, wi.th the exception of the righ t to damages, a agai n s t the proprif··

tor of such enterprise. Further claims which may arise fro111 other legal provisions sha l l not he afft>ctl'd.

Excef1liv11s

Article 101. - (1) 11', in the event of infringement of a right protected under this Act, the demands o f the injured par ty for an injunction (Article 97), for destruction or render· ing the work uuusable (Article 98) or for delivery (Article 99)

are asserted against a person whose acts o f i nfringement were neither intent ional n o r negligent, snch person may simp ly i n demni ty in money the injured party if execution of the afo rP.s,.id demands wou l d produce for him a serious and dis­ proportionate injm·y and i f i t may he assn 111ed that the injured party could accept redress in cash. The damages payable as

aforesaid shnll be such an amount as wonld have constitute£]

an equitable remuneration had the rigltt been granted hy

contract. Payment of such datnagcs shall constitute the in· jured party's consent to a util ization within cnstomat·y l imi ts .

(2) The provisions of A•·tic!Ps 98 and 99 sh a l l not apply to : l . works o f architecture; 2. separahle parts o f copies and ecplipnH'nt whose· rl'pro·

duction or d ist rib u t ion is not unlawful.

Limiwtio11.

Anicle 102. - ( 1 ) The •·ight to damages under Article 97 shal l expire in three years fron1 the poin t i n L i nte a t whicl • the injured party received knowledge of the damage and of the identity of thr rt>sponsihlc par ty, and, inespective of such kno wledge:, in thirty yc·ars front the cotnmission of' the acl .

( 2 ) Right ar is ing fron1 Articles 98 and 99 shall not he suhjeet to l int i tat ion.

P11l1lil'(l /ioll of tf ,, judgiiWIII

Arlicle 108. - ( l ) If an action has been bronght n t tder this Act, the juclgme 1 1 t may au thorize the successful party to

publish the judgme n t a t the cost of the losi ng party, if the

successful pa rty can offer a lr ·gitimatc rca ou so to do. Uttless

the court ru les otlH'rwisc.. lhl ' j 1 1 1lgnll' n t 1 u a y not lw pu lt l is l t r.d nut i ) it !JetOIIIeS final .

-

(2) Tl11· n a t l l l"l' and t•xten t of th e pnbl il'a t iun ,hall he de­ tt · : ·nlined in the judgment. The authori ty to publish the judg­ 111\'Ut shal l expire if it is not p ubl ished wi th in six months after i t hccomes final .

(:n Til l' party giveu authori ty to publish 1 1 1ay rc·tpll':<t t l 1a t the los ing party defray i n advance the cost o f puhl i c:atiou. This request shal l he rukrl upon by a competent cou rt of first

instance i n a procectl i u g without oral argument. Prior to rul­ ing upon this 1nattcr, the lo,;ing par ty shall be heard.

f.r•guf rrCtlllrSe

Artit·fr• JU.J.. -­ For a l l l it igation co ncern i 1 1g the cxt· rc'IHC of rights arising fro11 1 the legal relationships regulated hy this Act {copyright l i tigation) ordinary legal recourse shall lw accorded. As to copyrigh t lit igation aris ing o u t of service or comn1i sion relationships where the cbt iman t's only objec­ tive is the payment of an agreed upon compensation. recourse to labor courts and to adiiiinistrative tribuual shall remaiu unaffected.

Cuurts for wpyright litig"tiv11

Article .LOS. - {l) Land goverr1n1cnts shal l be e111powered to assign hy ordinance copyright l i t igation falliug within the jurisd i ct ion o f the Land courts (Lwulgerich tc) to one of sev­ nal L"nrl courts in tlH' f i rs t instance or o n ap peal, i f this I S 111 the in terests o f justice.

{2) L"nd governments shall furtlter J,c elllpoweretl to as­ 8ign hy ordinance copyright li ti gation falling wi th in the ju ris­ dict ion of the lower courts (Am tsgerich te} to one of several lower courts for the {listricts, if this i s in the interests of justice.

(3) The Lwul governments m a y transfer the power cov­ ned hy paragraphs {l) and {2) to the Lancl law authorities.

{4) fn the case of a La11tl court, to which under para­ ,graph { l) copyright l i t igat ion from the d istric t of several '-a/1(1 courts are assigned, the part ies 111ay also he represented by lawyers who in-c recognized hy the La11d court which would normally have j111· isdiction. The same procedure shall apply in case where the h igl.cr Lund court acts a,; an appeal court.

{5) The extra ex pe11St' i ncurrc: d l ,y a JHII' L)' i n arranging to IH; LTJH·esen tetl under paragraph {·1) by a lawyer not rc­ cogni:.:ed l1y the court hearing the e<ll<c shal l n o t Ill' refunded.

:! . Cl'i 111in at law (II'UVi.,iuns

Unla wful exfJinitatinn nf copyrigh ted ll'orl•s

Article 106. - Any pcrso11 wl.o, otherwi,;e than in a l l lan­ ncr ;dlowt·tl hy law, w i th intent aud wi thout the copyright owne r's consent rcprotlnCI'S, dis tributes or pnhliely COIIIIIll llli­ catcs a work or an adapta t ion o1· transformation of a work shall !Je subject to a fine or i m prisonment np to one year.

lf11la wful dl'sig11atin11 of rwthorsltif!

,frticlt! 107. - 1t ,;hall l1c p1 1n ishalJle [ ,y fi 1 1 1 ' . o r by in1­ prisonn11: 1 1t n p to one year. iusofar as the c o n d u c t 111ay not warrant a more severe peualty p u rsuant to other provis ions, for any person to :

·1 . affix a des igna t ion of authorship (Article LO, para­ graph 1 ) . in tentional ly and wi thou t the a1 1 thor's consent.

NATIONAl. u:c.;tsi. .·I'I'HJ.V 26:3

on tht· original uf an a rt ist i l' work. or to di trihn tL· an original hearing such a designat ion;

'1 aff ix a designation of authorship (Articl!' L O . para­ graph 1 ) on a copy, adapta tion or transfonuatiou o f an artist ic work in such nlallnt•r as to give to the copy, adap­ tation or tran fonuat ion the appc<uance o f a n original. or to distr ibute a copy. adap tation or tran fonnation hearing such a designation.

lnfri11ge111CII t of rl'luterl righ t s

Article 10/J. -- T t h a l l he pun ishahlc hy fint· , or hy iln­ p risoumenl u p to out· year for any person. other than u 1 a Jllilllner pennitt!"d by law, i n tent io nally and without the con­ sent of the possessor of the right, t o :

l . reprodnce, distr ibute or puhlicly con1111U11icatc a scienti­ fic publication {Article 70), or an adap tation or trans­ formation thereof;

2. exploit a posthumous work. or au ada ptat ion o t· trans­ formation thereof, contrary to tl11· provisions of Ar­ ticle 71 ;

3. reproduce, d is tr ibute o r publ icly conlmnnicate a photo­ graph {Article 72), or an adaptation or transformation thereof;

<1. exploi t a perfonuancc t·ontrary to thr provisions of Ar­ ticles 74, 75 or 76, paragraph ( l ) ;

5. explo i t a sound record coutrary to the provis ions of Article 85;

6. exploit a broadcast contrary to the provisions o f Ar­ ticle 87;

7. exploit a visual or vi nal and ound 1·ccord contrary to the provisions o f Article 9·l, o r Article 95 in relation to Article 94.

CuiiiJ!IIIillt 1 11 11 rri111inu/ f!l·u. t·r·utiuu

Articll' l09. -­ A criminal prosecution shall occur only 11pon a complain t . The complaint may h e withdrawn.

Right of dc.�tr11ctivn wul imilar meus11rcs

Article 1 10.- l n the casl' of offences mHler Article,; 106. .1.07, i tem 2, and A rticle 108, tlte injured party may m<sert the r ight,; specified in A rticlt:5 98 antl 99 i n accordance with the provision.-; of the Code of Crin1inal Procedure concerning compensation to the injured pal'ly {Articles 403 to 406 c)) hy bringing the case before the Amt gerich t, irrespective o f the val11c of the object ill dispute. In nch offences Article <10 of the Penal Co{le shall not ap ply to the objects meutioucd in Articles 98 and 99.

l'ublicutivu nf th<' jurlgmc11t

Article 111 . - (1) Jf in case. covered by Articles 106 to 108, a penalty has been prouonnccd, the conl'l may also, upon

req11c t, grant to tl1 1 · injn rf'd party the righ t to publish the judgnwnt at the dcl't· ndant\ I 'XPCIISl', i f t l 11: injured party has

a justifialJle i n t"rest i n so doing. A copy o f the legally valid

judgment shall h e suppl ied to the injured par ty a t the de­ fendant's expense. The righ t to publ ish the judgment shall expire if i t has not heen made p11blic wi thin s ix months after 1 1otification.

UJI'l "t<IGttT /Jfr:t·:MIIt·: li t%:i

(2 ) At th1· requ1·:;t of a defeudaut who has heen acquitted. the court may onler the publicatiou of the judgmcut of ac­ quit tal. In the case of a prosecutiou arising from a private complaint, the expense shall h e borne by the complainant; iu a case of an o fficial complaint the costs shall be horuc by the uational treasury unle. s under Article 469 of the Code o f

Criminal Procedure. the c o ts m a y b e charged t o the informer.

(3) The natmc and extent of the publication shall be

determined in the jmlgmeul.

SECTION II l

judicial execu t ion I . General

Article l l2. - Judicial execution with respect to the rights protected b y this Act shal l be i n accordance with gen­ eral provisions of law in the absence of anything to the con­ trary contained iu Art icl es 113 to ] ] 9.

:!. .hutidal I'XI'I'ntinn ul' da i lns :tl(:tinsl llu· anllwt•

The right of the author

Article l lJ. - With respect to claims against the a u thor, judicial execution is permissible only with his consent, and

only insofar as he has a right to grant licences to the wo1·k (Articl e 3 1 ) . The couseut 111ay not he givcu th ro 1 1gh a legal represeutative. f

0 riginal of works

Article .l14. (.I ) With •·espect to claims agaiust the author, judicial execution as against originals of his works owned by him shall he permissible only with his consent. The consent may not be given through a legal representative.

(2) No such consent shall he required:

l. insofar as judicial execution upon the original of a work is necessary in order t o effectua te _judicial execution o n a licence t o the work;

2. with respect to judicial execution ou the original o f a work o f architectu•·c ;

3. with respect to judicial cxecutiou on the original of au­ other artistic work, i f the work has been publicly dis­ seminated.

In the situation covet·ed hy items 2 and 3, the original o f the work m a y b e distr ibuted without the au thor's consent.

:1. J1111 iciul execution ul' claims aguinst the uu llwt•'s legal successur

Co[lyright

Article 1 15. - A judicial execution 011 a copyright IJy reason of a claim against the legal successor of the author {Article 30) shall he perlllissihle only with the consent of such legal successor, and only insofar as he has a right to grant licences to the work (Article 31 ) . Such consent _is n o t

necessary if the work has been published.

Origi11als n/ wn rl.-s

Article 1 16. - ( l) With respect to claillls against the autho•·'s legal successot· {Article 30), judicial exccntiou on

originals of works of the author owned hy the legal successor shall he permissible only with his consent.

(:!) No nch l'O II 'C I I t sha ll he required: 1. i 1 1 the ituations covered by A rticle J 14, paragraph {2),

sen tcncc 1; 2. for judicial cxec11t ion on the original of a work which

has been publislu·d.

Article ·1 1-t. paragraph (2) , sclltCIICc 2. shall apply as ap­ propriate.

Executor

Article 117. -­ [f, in accordance with Article 28, para­ gr< ph (2), i t has heen determined that the copyright may be exercised by an executor, the consent required in Articles 115

and 116 must he given b y the executor.

4. ,Ju<licial CXI'Culiun ol' claims against the anthm· ot' scientil'ic editions an<l against n photog•·aphcr

Article 118. -­ The provisions of Articles 113 to 1 1 7 shall apply as appl'O)l,l' iate :

1 . to judicial l'XI' C u t i o n for elain1s aga i ns t an an thu r o f a sci• ·ntific edition (Article 70) and against his legal suc­

cessor,

2. to judicial execution for claims against a photographer (Article 72) and against his legal successor.

fl• .J 111Iici:tl I'XI'CUtiun fuo• rf:tiniS with 1'1'-'lli'Ct IU Cl'l't:thl l'fJII iJJnll•nt

Article 1 1 9. - (I) Eqnipmeut in teuded exclusively for the reproduction or broadcasting of a work, such as m oulds, plates, engraving stones, blocks, stencils and negatives, shall be subject to judicial execution for claims only insofar as the creditor is entitled to use the work by means of such equip­ mPnt.

(2) The same shall apply to equipment intended exclu­

sively for presenting a eincrnatographic work, snch as reels of film and the like.

(3) Paragraphs (l) and {2) shall apply as appropriate to publi cat ions protected under Articles 70 and 7 1 , t o photo­ graphs protected under Article 72, and to visual and sound records JHOt ected under A1·ticle 75, sentence 2, and Articles 85, 87, 94 and 95.

PART V

Application of Transitional and Permanent Provisions

SECTION I

Appl icat ion of the Act I . C:oll 'f·ight

German nationals

A rticle l20. - (1 ) German uationals shall enjoy copy­

righ t protection with respect to all of their works, regardless o f the date and place of publication. In the case o f a work created by co-authors (Article 8) , i t shall he s u f f i c i e n t if ouc o f the co-anthors is a Gcnuan national.

(2) German suhjrcts within the meaning of Article 1 16. paragraph (l ) , of the Fonndation Act (Gnuulgesetz), who do not p o sess German nationality, shall have equal status w i th

German nationals.

Forcig11 llrrtiu11als

Article 121 . - ( l ) Foreign nationals shall enjoy copy­ right p ro tection with respect to th e ir works published withiu the jurisdictiou o f th is Act. unless the work or a translation thereof I 1< 1S been publishe£1 out ide of such jurisdic t ion more thau th i rty days p r ior to its publica t iou within such juris­ diction. Subject to the sa 1ne l imitation, foreigu nationals shall enjoy protection wi th respect to the'ir works puh l i hed within the jur i t!ict ion of this Act only i n translation.

(2) Artistic works which arc an in tegral part of real property located within the jurisdictio n of this Act shal l he assimil a ted to works pub l ished within such jurisdietiou for the p u rposes of paragraph ( 1 ) .

(3) The protection gran ted, p ursuant t o paragraph ( 1 ) , to works whose au thors are foreign nationals may be limited by decree of the Federal Minister of Jus tice, if the autho r · is uo t a natio na l of any o f the Member Sta tes o f the Berne Conven­ tion for the Protection of Literary and A r tist ic Works. and if

a t the time of p ub l i cat io n of the work he is neither a domici­ liary within the jmisd ictiou of t h is Act, nor within one of the Member States of the Beme Union, aud i f the State of which he is a na t ional t!oes no t adequatel y protect the works of German nationals.

(4) In any case, fo re ign nationals shall enjoy co pyrigh t protection as prov ided by international treaty. In the absence of such trea ties, snch works w il l be p ro tected by co pyright if, according to a notice by the Federal Ministet· for Just ice ap­ pearing in the Brwdesgesetzblatt, German na tiona ls enjoy in the S tate of which the author is a national a p ro tect ion ('Or­ respond ing to th a t gru n ted to the ir o wn works .

(5) Droi t de suite (Article 26) shall he avuilahle to for· eign nationals only if the State of which they are nationals grant, according to a no tice hy the Federal Minister for J us­ tice in the Bunde8gf'set:.bla1 1 , Ger man nationals a correspond· ing r igh t.

(6) Pro tect ion pursuant to Articles 12 to 14. shall be en· joyed hy fore ign nationals with t·espect to ul l of the ir works, even i f the conditions contained in paragraphs ( l ) to ( 5) hereo f are not fulfi l led.

S111tf'lcss [1erw11s

Article iLl. - ( l) Stateless per. ous who pe nnanen t ly re­ side w i th i n the j urisd iction of this Act shal l enjoy with respect to the i r works the same copyrigh t protection as G e rman natiouals.

(2) Sta telc s persons who do not penu anen tly resid!' withiu the jm·isd ict ion of this Act hal l enjoy with respect to the i r works the sam!' copyr ight p rotection as the nat ion als of the foreign State i n which they pe r tnanPn tl y n·siile.

Forf'ign rl'jugf'f's

Artirlc 123. - Foreigners who are n·fugees withiu the rncan ing of trea ties or other legal provisious shall he covered by the provisions of Ar tic le 122. Thi s l1a ll uo t prec:lnde p ro­ tt·ct ion 1 1 n d e r Arti t· le 1 2 1 .

N.·IT/0\'.It u:CISL ·IT/Oi\ 26

:!. Hrlalo•tl •·i:,:hts

Scie11ti/ic Pditioll. atr1l (lhotogratlhs Article 12-J. - l u respect of the pro tection of scientific

t'd itions (Art icle 70) and the protection o f photograph (A r· tielt · 72) . Art i !'lt·s 1 20 to 1 2:3 shall apply a appropriate.

Pmtectio11 of the {lf'rjom1er

Article 125. - ( l ) The protection gran ted under Articles 7:) to 84 sha l l he enjoyed by German nationals with respect to all their p erfo nnances, irrespective of the p lace when they take place. A rticle ] 20, paragraph (2), shall apply.

(2) Fo reign nationals shall enjoy protectiou with respect to all of the ir pe •·fo rmances within the jurisdiction of this Aet. suhject to the provisions of paragraphs (3) and (4).

(3) I f perfo nnances by foreign na tionals a re lawful ly fixed 0 1 1 v isual or souud reeords, and i f such records have hecn publ ished, such fore ign nationals, with respect to such visual or sound records, shall enjoy protection p u rsuant to the provisions of A rt icle 75, sen tence 2, Article 76, para­ graph (2) , and Art icle 77 if the visual o r sound records have hcen published within the jur isd iction of this Act, unless such records have been published outside of the jurisdiction of

this Act more than th ir ty days hefore th ei r publ ica tion within such jurisd ic tion .

(4) If perforruunces of fo re i gn nationals are lawfully b roadcast anti the broadcast was transmitted from within the ju risdiction of this Act, the foreign uationals sha l l enjoy pro­ tection against the recording of the broadcast on visual or sound fixat ions (Article 75, cn tence 1) and against the re­ broadcasti ng o f the broadcast (Article 76, pa ra gra p h 1 ) as well as the protection provided in Art icle 77 .

(5) I n any case, forei gn nationals shall enjoy protection as provided by i n ternational treaty. Article 121, paragraph (4). sentence 2. as well as Ar t iclt's 1 22 ami 123 shal l apply a appropriate.

(6) Pro tecti on pursu a n t to Articles 74., 75 and 83, sen­ tence 1, sha l l be enjoyed by fo reign nationals with respeet to the ir performances, even if the conditions o f p :u·agraphs (2) to (5) hereof are not fulfilled. The same shal l app ly to the p ro tection pursuant to A rticle 76. paragraph (1 ) . insofar a a direl'l hroa tl ca t of the perforrnance is concerned.

fJrut('ctinll of the f1 1'Utfu cer uf souiJtf rl'cortls Article 126. - ( 1 ) The protection granted in Articles 85

ami 86 shall he enjoyed by German uatiouals and German enterprises which have their headquarters within the juris­ dic tion of this Act with respect to all o f their sound recort ls. irrespective of whether allll whe re they hav•· ! teen puh l isht·rl . A rticle 120, pa ragr·aph (2) . shall app ly .

(2) Foreign nationals and fon· ign enterprises which do not have the ir headquarters within the jurisdiction of this Act shall enjoy protect ion for their sonnd records published within such jurisdic tion unless thr record was published ou t ­ s ide of the jurisdiet ion o f this Act nwre than th irty days lw­ fo re it was pnh l ished with in such jurisd iction .

(3 ) In any case, foreigu na tionals and fo re ign enterp rises wl t ir l 1 do 1 1 0 t havt· their head qu a rte rs witl 1 in t:ht · jnr isd ic t ion

266 COPl'/UG/1'/' OI·:U:M/11\N 1%.>

of this Act. shal l enjoy protect i on nf' p rov ided hy i u ternational treaty. Article 121. paragraph {-J. ) . senteucc 2. as wel l as Ar­ t ic les 122 aml 1 23 shall apply as ap p rop ri a te .

Pru/('('/ion of tlte broadcasting orgruri::ation

Articlr• 127. - ( l ) B roadcast i ug o rgan iza t ion which havr· · the i r headqu ar ters w i t h i n the ju ri_Rc l i ! 'li on of this Act shal l eujoy the protection p ro v i ded by Ar ti l' le 87 with respect to al l o f their broadcasts, irrespective of where they c11 1a n a te .

(2 ) B roadcast i ng organizations which d o n o t have their headquarters w i t h i n the juri dict ion of th is Act shall eujoy p ro teetion fo r al l of their hroadcasts wh ich t'ntanate front sneh area of jurisdict ion.

(3) In auy case, broadcas tiug organizations which do uot. have their hea clquarte t·s with i n the jnr isllic tiou of this Act shall enjoy p rotection as pro v ided by in tema t iona l treaty. Article 121 , p a ragraph (-l), seuteuce 2. shall apply as ap­ p ropri a te .

Protecti1111 uf t h e film Jlruducer Article 128. - ( 1 ) German uationals aud German enter·

prises which have the i r headquarters with in the jurisdiction of this Act shall enjoy protectio u ptt t ·suant to Articles 94. and 95 with respect to their visual or visual and souud records, inespective of whether aud where they have heen publ ished. Article 120, paragraph {2 ) , sha l l a p ply.

(2) The provisions of Article 126, p aragraphs (2) and (3) , shall ap p ly as ap prop ri a te to fore ign nationals and fore ign enterprises which do not have their headquarters w i th in the juri d ic.t ion of th is Act.

SECTION t t

Trans i t ional p rov isions

Wurks

A r ticle 129. - ( 1 ) The provisions of this Act shall apply as well to works created before the d a te upon which this Act

hccame effective, u nl ess such works a t that time were not

protected by cop yrigh t , or un less some provision to the con­ trary i s contained i n thi, Act. The l'orcgoiug shall also apply to re lated rights.

(2) The term of copyright w i th respect to works which have heen publicly disse minated after the expiration of fifty years from the auth or's death, but prior to the effective date of this Act shall be dete rm in t•d i u aeeonlanl'e wi th previously exist ing lega l p rov is ions.

Trr111slat ions

Article 130. - Nothiug herein coutaincd shal l affect the r ights of an authot· of a trauslation which was lt·ga l ly pub­ l ished prior to . Tannary J . 1902, without the co nsen t ol' the author of the work whicl t wm; thus t r a nsla ted.

titerary worhs set 1 1 1 11111. ic

Artirle 131. - Literary work;; s e t to tnusic which, pur­ suau t to Article 20 of the L i terary and Musical Copyright Act of .J u n e 19, 1901 (Reich. gesetzhlall, p . 227) in the version of the Act of May 22, 19LO, concem i ug the ex ;·r·u t iou of the Rt•viscd Bemc Convcut ion for tlH · Protection of Literary aud Artistie Works ( Rf'irhsg >sr•t::lda t t . p . 793). !'Ou ld l l f ' rl'pro­

du<:ed. distributed altll publicly conununicatcd without the conseut of their author, may cont i n ue in the future to be rep roduced, distributed and publicly communicated to the sante exteul. il' the musical versio n of the work has llf'PII ptdl­ l i IH ·d pr ior to t lw t•Ht• t·t ivt· d a tl' of thi Act.

Cuntnu·t .>

Article 132. - ( l ) The prov is io ns of this Act, with the exception of Articles '12. <13 aucl 79. . hall not apply to COli· tract entered i n to prior to th e effective d a te of this Act. A rt i c les t!Q and 4L shall apply to such contracts, except that the periods mentioued in Article 40, paragraph ( l ) , senteuce 2. shall begin not earlier thatt the effective date of this Act .

(2) Activit ies occttrring prior to th1 · ..Cfecti vt• d a te of thiR A1·t shall n• t tt a i n valid.

Stlllllll records

Article 133. - ( I ) With respect to musical works whick pursuant to the provisious of Article 63 a , paragraph ( 1 ) , of the Literary at td Musical Copyri ght A c t of ]ttne 19, 1901, iu the version of the Act of May 22, 1910. concerning the execn­

'

tion of the Re v ised Bcr11c Cunveution for the Protection of

L i te ra ry anll Artistic \Vo rks, could be freely recorded ot t in ­ struments for mechanical reproduction , it sha l l continue to be permissible to fix same on sound records, ancl to repro· duce and distribute such records.

(2) The p rov is io 1 1s of paragraph ( I ) shall uot apply to sot t t td films.

Authurs

A rticle 1 34. - Any person who, at the time of the effec· tive date of this Act, wou ld have consti tuted an author under p rior legal provisions. but not nuder the provisions of thi Act, shall continue to be deemed an author except for the purposes of Article 135. If uuder such prior p rov isions a cor­ p ora te hody would l1e regarded as the au thor of a work, such p r ior provisions shal l he appl icable in calcnl a tiug th e dura· t io1 1 of co pyrigh t .

Owners of rl'lHterl rights

Article 135. -­ Any pcr ou who a t the ti 1 1 tc of the effec­ t ive date of this Act would be considered, under p ri or legal

p rov is io 1 1s, as the autl to t· of a photograph or of the record i ng of a work on instrnments for mechanical reprodnct i ou , shall be tlw owuer of the eo rTcspo 11d i ng related rights gra1 1ted by tl t i At· t.

RPJJI'IIdu('/ion ruul rlistril.w tion A r ti('IP 136. - ( I ) With respect to a rep roductiou per­

m issible under p rio r lega l provi:;io11s but i l legal u u der this

Act, the maki 11g of copies of such rcp roduct io 11 comntenccd p rior to the effec t i ve d a te of this Act tnay be com p le ted .

(2 ) A11y copies made pursnaut to the provisions o f para­ grap lt (l) . o r t it " making of which was comp l ..tcd prior to t l 11· e ffl'c t i vc date of this Act. l l t ay be distr ih1 1 ted.

(:l) 1 1' tt 1 1 tlcr this Act a1 1 equitable rC I I l lu lentt io l l rs to bl' p a i d to the own('r of tin· rights with respect to a rcproduc­ t iou, which uudt·r pr ior ll'ga l provis ions wottld h a ve ),een free. ti t ! cop ir· s t lesig11 a t c d in paragraph (2) l l tay ht· t l i s t: ri l l l r t ­ t · d w i t l t o n t payi iH' I I t of a I'C' I I t t l l lt'l 'a t in t l .

267

Article 137. ( I ) If a copyright ha lll·eu as igun l prior to the effective date of this Act. the assi guec skdl eujoy the corn·spoudiug righ t,; of a l icenlil'C (Article 3l). However. iu case of douhl- the assiguull' l l l shall uot ht• dceu1cd to cxtcud to rights which arc cstahlishcd o n l y uuder this Art.

(2) H the copyright has !Jecn as;;igued iu whole or 1 1 1 part to auother pr ior to the effective date o f this Act. iu cast· o f dou!Jt the assignment shall also he appl icable for the dmation of copyright as cxteuded pursuaut to Articles 6- to 66. The same shall he true i f prior to the effc :tive dall' of this Act a third party has beeu au thorizt·d to exercise oue o f the rights granted to the author.

(3} Tn the si tua tious. e

d ,

·

u v isaged uuder p a ragraph ( 2 ) . the assignee or the holder of the a u thorization shall pay t o the assignor or gran tor an equitable compeusa tion if it appea rs that the lat ter would have been paid greater compensation for the assignmeut or au thorization i f the extended term of protectiou had been determined al the lime of the original assignmen t or grant.

(4) The right to su .:h ren11 1 1 1era t ion shall uot snhsist if as soon as a claim therefor i asse t·ted the assignee or l 1older of the authorizatiou gt·an ts to the c la imaut the rights in the work for the period fol lowi n g the expiration of the fonuer term of protection, o r i f the assignee or holder waives wch rights for the period during the extended term of protection. If the assignee or holder of the authorization has resold the rights prior to the effective d a te of this Act, he shall not he requir­ ed to pay the aforesaid compensation if, under the circum­ stances of the resale, it would con t i tn tc an nndnc hnrdcn for him.

(5) Paragraph ( 1 ) shall a pply as appropriate to related rights.

!iECTIOi\ I l l

Pt:rmancnl provisious

R('gi8ter of Auth ur.,

Arliclc• l38. ( I ) The Regis ter of A u t hors for lhe reg i:;- lrations speci fied in Article 66, paragraph (2 ) , i te 1 1 1 2, shal l he kept at the Patent Office (Paten tttmt}. The Patent Office shall effc<"L thl' n·gis l r a t i ou. , wi thout v e ri fyi ng Ll 1c a p p l ic a n t' crecleutials or the acenracy o f the i n formation snlllui ttcLI for registrat ion.

(2) Should registration l oe t lccl iued. t i ll' applican t 1nay petit ion fo ;· a decisi on h y the courb. Tile deci,ion on ti le application shal l loe made b y the Oherlttlltlcsgericht . conl­ petcn t for the district i n which t h e P a te n t Office is s i tnat1 · and i ts d ecision shall he reasoned. The application shall he made to the OberlwHLc gericht in w r i ting. The court's decision shall he final. Otherwise, the legal procedure shall he governed hy the provis i ons of th e A c t 0 1 1 m a l l1• rs of vo l un tar y arhi tra­ t io u (freiwil/igc Gerir-htsllllrht'it). Th1· o ffil'ial scall' of cos ts shall apply to the c o u r t costs. a n d tll f • ft·cs shall he dl'lcnnin­ ed hy Article 131 of the calc o f costs.

(3} The reg istra t ions shal l he publ ished 111 the Buncles­ l/ll;:;eiger. The cos ts o f pnb l icalion shal l he paid in advance hy the applicant.

i\' IT/0\'..If. t.I-:CIS/, IT/OY

( I ) l l l,;pcr l iou of the l{q;it <tl'l' or Authors shal l he open lo the pnhlic. Extn1cl fro1u the Regis ter shal l l oc issued on request; when rcq n i n• t l . tht>y shall he certified.

(5) The Federal i\linist t •r of .l nslicc shall he authorized to iss1 1e h y way of an ordiuanct• n'glllat ious as to tht· fon 1 1 of a ppl ica t ion. the couduL:t of the Rcgis tn of Authors and the cha rgi ng or co,; ts .

(6) Regis tra t ions whi :h have hecn pcrfonned at the City Cou nci l (Studtrut) of Leipzig in conformity with Art ic le 56 of the Lit e rary and l\1nsind Copyright Act of June l9, 1 90 1 . shall rema i n e ffec t ive.

illudificutiun of thl' Code of Cri111inul l'rol'edure

A rticle .139. - Article 37--!. paragraph (1 ) , item 8, o f the Code of Criminal Procedure shall read as fol lows: ·' 8. Any i u friugements of patent, registered desigu, t•·adc­

mark aud desigu patent law, insofar as they are p u n ish­ able as offence>, as well as offences under Articles 106 to 108 of the Copyright Act. "

Jlllotlificutitlll uf tht! Acl concerning the UniPersul CoJI.)'..ght

Cu1wentiu11, :;iglled September 6, 1952

Article 140. - I n the Act o f Fehnwt·y 24, 1955, concern­ ing the Universal CoJ>yright Convention signed September 6, 1952 (Bunde geset:bla/1, I I , p. 1 0 1 } , the fol lowing Article 2 a} sha l l he inserted fol l ow ing Artidc 2 :

" Article 2 a) The provisions of Arti.cle lV, Nos. <1 to 6, of the Cou­

vcntion shall be applicable wi thin the jurisdiction of this Act for the purpose of calculat ing the term of protectiou to he a�:co rdcd uuder the Convent ion lo foreign national with respect to their works. "

Ai.Jrogatio11 of Jll'llt>isitJ/IS

Articlt• 1 •1 L . - Upon th\' effective date of this Acl, the fol l owing provisions shal l he abrogated:

I . Artic les 57 to 60 of the Act concer n i n g Copyright in L i tera ry Works, I l lustrations, Musical Compositions anti

Dralllatic Works of June 11, 1870 (BunclesgesetzblaiL o f tht· North GernHIII Confederation, p. 339} ;

2. Art icl es 17 to 1 9 of the Act concerning Copy right in Art is t ic Works o f .l <1 1 1 1 1 a ry 9, 1876 ( l<cich gesctzblall, p. ·J.) ;

3. the A c t co n cern i ng Copyright i n L i t e rary a n d Musi :al Works of .Tunc l 9, l 90 J , in the version of the Act o f May 22. 1 9 1 0, co n cern ing the execution of the Revi,;cd Bern<' Convention for the Protection f Li terary aiHI Artist ic Works and of t lu· A c t cx tendi 1 1g the te i·1 ns of copyright pro tection of December 13, 1934 ( Reichsge etz­ h/alt, I I, p. 1395) ;

-L Articl •s 3. 13 and 42 of the P ub l ish i ng Rights Act of .l nnP 1 9. l90l (Reichsgcset::;b/(l / 1 , p. 217) in the version of tht Aet of May 22, 19] 0. concerning the cxecHtion of the Rt·vised Bemc Convention for the Protection of Liter­ ary and Artist ic Work ;

5. the Att conceming Copyright i u Artistic Works and Photography of January 9, 1907 ( /Zeich gesetzblatt, p. 7)

i n thl ' ver iou of the Act of May 22. 191 ()_ couccm i ug the

268 (.'( )f'j"[([(; [['[' IJ I·:U:M111-:II IW.!i

cxt·cution o f the Revi ed Berne Convention for tltt• Pro­ tection of Literary and Artistic \Vorks, of the Act extend­ ing the tcnns of copyright p rotect ion of Decemher 13, ] 934, and of the Act extending the terms of copyright p rotection i n photographs of l\'fay 12, 1 940 ( /{f'icll8geselz­ ldall, l, p. 758) insofar as it docs not concern tl t t • pro­ tection o f p o rtntits;

6. Articles I, III and lV of the 'Act of May 22, 1 9 10, con­ cct·uing the execution o f the Revised Bel'lle Convention for the Protection o f Literary and Artistic Works;

7. the Act to facilitate film repot·tiug of Apri l 30. 1 936 ( Reicltsgeset::blall, I, p. -104) ;

B. Article 10 o f the Act conce rning the Legal Status of 1 ;itatelcss (heinwtlos) Foreigners i n the Federal Territot·y of April 25, 1951 ( Bundesgesetzblall, I, p . 269).

I I

A[l[llit·tllioll i11 Land Ber/i11

Arlide 14:2. - I n accordance with Article 13, paragraph ( l) . o f the Third Transitional Act of J anuary 4. 1952 (Bwules­ gesel::bfall, I, p. 1 ) . this Act shal l also apply i n La11d Berlin. Ordinances issued pursuant to thi Act shall also apply in La11tf Berlin in acconlauct• with Article 1-1 o f the Third Tran­ sit ional Acl.

Article 14:3. - ( I ) Articles 64 to 67, 69, 105, paragraphs { 1 ) to (3), aud Article 138, p a ragraph (5), shall come into effect 011 the day following promulgation 1) of this Act.

{2) Otherwise, this Act shall come into effect ou J anu­ ary l, 1966.

1 ) Promulgated Scptcmhcr 16, 1965.

,

Act dealing with the Administration of Copyright and Related Rights (Of Scptetnlwr 9, l 965) 1 )

SECTION I

Au thori·wtion to conduct husiness

The <mthorization requ.irew etl/

Article 1. - ( 1 ) Any person who manages the collective exploitation rights, liceucc rights or authorization rights where such rights give rise to a right of remuneratiou p u r­ suant to the Copyright Act o f September 9, 1965 (Bwules­ gesetzblatt, I, p. 1273) , on behalf of a 1111mber of authors o r owners of related rights, must obtain a n a uthorization t o the effect that such adrninistration is firmly authorized by such author or owner in his own n a me or nnder the name of an­ other.

{2) Paragraph { l) shall not app ly to occasional or short term administration of specified rights and privi leges.

(3) Any person who conducts business witho ut the author­ ization rP.Ij l l ircd in paragraph (1) cannot assert the rights or privileges entntsted to him for administration. He shall n o t have standing t o fi le a complaint pn t·sn<tnt t o Article ]09 o f the Copyright Act.

(<1) If the activity specified in paragraph ( l) is exercised by a corporate body or a comntt tnity of persons, either of the latter shal l be a collecting society within the meaning of this Act. If the activity specified i n paragraph {l) is exercised by an individual natural person, the provisions laid down in this 1 Act iu respect o f collecting societit·s shal l apply accorclingly.

GranL uf twdwrizalion

Art.icle 2. - A u thorization shall he granted on receipt of written ap plication by the supervising authority (Article 18 , paragraph 1 ) . The a p plication sha l l he accompanied ! ty:

l . L i te socie ty's articles of associat ion; 2. a list o f the n ames, add resses and 11atiouality o f the per­

sons who may lawfully I'P.(ll'f'Seut the society, accot·ding to law o r to the articles;

3. a declaration stating the n111 1 1her· o f persons who have nominated the collecti11g society to administer their right of use, rights of assent or claims to remuneration, as well as the number and material importance o f the rights and claims en trusted for administering to the society.

Wlitlrlwldillg of rwllwrizaliun

Article 3. - ( 1 ) Authorization may be witltlrcld ouly if : ] . the art ic les o f the collecting s?ciety do not conform to

the provisions of this Act; 2. there is factual evidence for assuming that a per·son who

may l awf11 l ly represent the collectiug society, accordiug to law or to the articles, does uot possess ti re rel iabi l i ty needed for the exercise o f its activity, or

3. the economic hasis o f the collecting society does not warrant the belief that the rights entrusted to i t wi l l he effectively administered.

(2) The reasons for withho lding authorization sha l l ltc stated and the collecting society shall be so notif ied.

Rc uor:atio11 of rwllwriztt lioll

Article 4. - ( I ) Authorization sllll l l lw revoked i f : .1 . 0 1 1 e of tlte reasous for withholding JI ICI It ioned in Articl e : ,

p a ragraph { 1 ) , was not known lo the supet·vising author­

1 ) Gc.sel:; iii.Jcr die \flahrnclllllllllg uOtl Urheberrcchl. l'll unrl l'(!rtuunrlten Schtll:rcchtt•u, vom 9. Seplcmhcr }965, pul.l ishc<l in BwHicsgcscl:blnll, [. I'· 129-1. No. ;j [, of September 16, 1965.

ity at the tinl l' o f granting authorization or t'amc to light later, and the deficiency has not been rcrncdied within a period to he fixed by the superv is ing authority, or

2. despite a warn ing by the supervis ing authority. the col­ lecting society repeatedly in fringes one of tha· obliga­ tions incumbent on it un cler t.his Act.

(2) The reasons for the revocation of authorization shall he stated and the collecting society shall be so no tif ied . Revo­ cation shall become effective three m onths after it has be­ come absolute, provided no later date is f ixed therein.

Publication

Article 5. - The gran t of a uthorization and any revoca­ tion which has become effective pursuant to Article 4, para­ graph (2), shall b e published in the Bwulesanzeiger.

SECTION I I

Hig:hts a n d d u ties o f a t'OI Icl'lin!-( society

(July to l/l/111i11istt•r

Article 6. - ( I ) The collecting society hall be rcqniretl upon request of the owners of the rights, to administer on equitable tenus the rights and pl"ivileges relevant to i ts sphere of activity if the owners of the rights !ll"e German nationals within the nacauing of the Foundat ion A ct (Grundgrset::;} or arc domiciled within the jurisdiction of thi Act aud i f effec­ tive administration of their rights and privileges is u o t other­ wise possible.

(2) Au agency representing cotHIIIOn interests shal l be formed to adcqnatdy safeguard the interests of owners of rights who have not been accepted as members of the collect­ iHg society. The articles of the collecting society must contain provisions as to the selection of members of the agency hy owners of rights, aud as to the powers of the agency.

Apportionment of i11come

Article 7. - The collectiug society shall apportion the income resulting front i ts activity nccording to definite rules (apportionment p lan} , which will prevent any arbitrary sys­ tem of apportionment . The apportionment p iau shall confornr to the principle that cultHrally important works and per­ formances are to be promoted. The pr inciples of the appor­ tionnaen t plan shall be iucorpora tcrl in the collecting socie ty's articles.

We/fan• a111l assistallt"P fiH:ilities

Article 8. - The eollccting society shall arrange welfar·e and assistance facilities for the owuers of the rights or privi­ leg!'s administered by it.

Accoulltubility 1111d iiiSfJPction

Article Y. - ( J ) Immediately on completiou of the finan­ cial year the collecting society shall prepare the balance sheet and profit anrl loss aeeouut for the past year, aud al:;o an annual report.

(2) The balance shccl shall con for111 to the principles of good accounting. I t shall be clear and in telligible.

(3) The annual report shall represent the course of opca·a­ tion., and the position of the conapany and shall t: lncidatc

N 1'/"/IJ \ 1/ . u;c; 1. 1. 1'/"10\ 269

tha• balauca· heel. The a t l l tua l report shal l conforru to the principles of conscientious and loyal stewardship.

(-!) The balance sheet, together with the accounting and the anunal report shall he examiucd hy oue or more auditors.

On ly chartered accountants oa· chartered accountant com­ panies may he auditor .

(5) The audi tors shall report i n writing ou the resu l t of their inspection. Should no objections be raised after the fiual inspection, they shall coufinn this by appendiug the following attestation to the balance sheet:

" After making my/our regular i uspectiou, llwe find that the accountiug, the balance sheet and the annual report are in conformity with the law a n d with the com­ pany's articles. "

Shonld objections be raised, the auditors shall qualify their confirmation or refuse i t . The auditors shall sign the attesta­ tiou, stating place aud dati' ,

((j) Tht: colll'cting soeil'ly shall pultlisla tlaa· halat l l't'· slact•lf 111 the l.Jutltle.wtii::;Pig<!r uot later than eight ruonth after· the dose of the financial year, giving the full text o f the at testa­ t ion . Should the anclitors have withheld their confirmation, attention shall be drawn to the fact i n a special notation on the balance sheet.

1Jut.\' 111 fur11ish i tforltllltioll

Article IU. - The collecting society shall he requirc<L upon written ret[uest, to i nform any person as to whether i t administers o n hehalf of a n author or owner of relater! rights, rights to usc with respect to a particular work, or au thoriza­ t i on rights therein, or certain rights to remunerat ion in con­ nection therewith.

The obligation to Clllll l'llct

Article 1 1 . - ( 1 ) The collecting society shall be required, with respect to the rights administered hy i t, to agree with may person so requesting to equ i table terms for the grant ing of a licence or other a11thorization.

(2) Should no agreement be reached with rctipt·ct to the amount of remuneration to he paid for the grant of a l i cence, or for au anthorization_ the licence or au thorization shall he deemed to have been granted if the remtrneration demanded hy the collecting society has been paid without prejudice, o r· i f sucla ren11 aneration is deposited in favour of the collectiug society.

f tclusit•c cu11tracts

Article 1 'J - A collecting society shall he required to conclude inclu ive contracts on equitnhle terms with associa­ tions who. e members exploit works or performances pro tected pursuaut to the Copyright Act or which require compe nsation p u rsuant to the provisions of the Copyright Act, with respect to the rights and privileges admini tered by the society, un­ less the society naay not he expected to conclude such a c o n ­ tract because the l l l lluhcl" of meauberti u f tht• assoc iat ion is insnfficien t.

Sched<Lle of charge:;

Article 13. - ( l ) The collecting society shall eswhlish a schedule of charges covering the rcmnneration it demands

:!iO (."() / ' } ' /( / (; //' /' /1 /·:r:�-:M III':Ii /l)(i.r,

for the rights al l ll p rivi leges admiu isten:d hy it . I I' iudusiv• • contracts have been execu ted. the agreed upou rate of re­ muneration contained in such contracts shall const i tute such charges .

(2 ) The collectiug socit'ly shall he rt·qu ired i uuuediat. t· ly to publish the chargP;; and any am.endmcn t. thereto i n the Bundesanzciger.

(3 ) T n establishing :;uch charges and 1 1 1 col lect ing the re­ muneration the collect ing society shall p a y due regard to the religions, cultural and social interests of the persons liable to pay remuneration, i ncluding youth welfare i n terests.

Aruilrfllion Conunission

Arliclt• 14. - (1) Should the parties not agree on the conclusion or modificat ion of an inclus ive contract, in accord­ ance with the provisions of Article 12, or a contract between the collecting society and a broadca t ing organization with rcspecl to the rights and privileges administered by

. the society,

each party concerncfl may appeal to the AdJitrat ion Com­ mission. There shall he no resort to act ion in the courts. The conclusion of an arbitrat ion agreement shall be permissible; however, arbitrat ion agreements with respect to future dis­ putes shall be void unless they accord to each i n terested party the right to demand, i u each case, t h a t t h e decis ion be ren­ dered by the Arhitratiou Commission rather than by a n arbitration tribunaL

(2) The Arbitratiou Commissiou shall be consti tu ted near to the supervisory au thority (Article 18, paragraph 1). It shall consist of a cha irman ot· his dep u ty and two associate judges. The Chairman and his deputy n1 1 1S t be competent to act as judges, in conformity wi tlt the German Justice Act. They shall be appo in ted by the supervis ing .au thority for two years; they may b e reappoi n ted . The associate judges shall be nominated hy the parties concerned in every case where the Arbitration Couunissiou is resorted to.

(3) Recourse to the Arb i tra ti on Connnis iun 111ay Ill' oh­ taincd hy writlen application to the supervis ing anthority. The appl icant shall nominate an associate judge in his appli­ cation. The supervising au thority shall comn!llnicate the ap­ plication to the defendant, requesting him l i kewise to nomi­ nate an associate judge within a term of ont· mouth. Should the reque t not he co1nplied w i tlt lwforc exp i ry, this asso­ ciate judge shall be nominated hy the supervisiug au thority.

(4) The Arbitrat ion Commission shall determine the terms of the contract referred to in paragraplt (1 ) , particularly the nature aud rate of remuneratiou. This dc tcrmiuatiou shall replace relevant agn:cments made hy the parties. lt shall he binding when i t has become absolute.

(5) The decisious of the Arbitrat ion Commission shal l he determined by majority vote. The dcci:;ions shall give reasons and the parties shall he so uotif ied. They may l11: contested by any party within a month of such 1 1ot ificat iou by a request for judicial decis ion .

(6) The A.rbi trat iou Commission shal l iuform the Bul/(les­ lwrl.ellam.t of any such proceedings. The provisions of Ar­ ticle 90, paragt·aph ( 1 ) , sentence 2, of the Act of J u l y 27. 1 957, . agai nst rcstrictious on competit ion (Bundesgesctzblal l ,

L p. I OH L ) shall he app lit·aldt• a:' apprupriatt • ,;nhjl'l.;t t u thL' l imitat ion that the chainuau o f' the Bwulesl.-ar/ellam/ tnay not appoint as a rept·esentative any member of the super­ vising authority .

(i ) The Federal Min i><tL'l' o f ,l u ,; t icl' ,;hall havl' thl' powt'l' to df'tcrmint· by ordinance the procedure to h1· followl'l.l hl'­ fore the Axhitration Commission. und part icularly to decree the detai led regulations concern ing the compensat ion to he paid to the nlf'llthcrs of the Conunission fot· thei r activ it ie:; as well as those concerning the legal costs of the proceedings.

}wlicial JII'OC('dllrc•

Artic:lc 15. - ( l} Thl' decision as tu the application for judicial decision in conformity with Article 1-1, paragraph (5), shall be taken hy the Oberlw1Ciesgerichr which-has competence for the area where the Arbitration Commission is situated. That court's decision shall he final .

(2) The judicial procedure shall he governed hy the pro­ v isious of the Act ou matters of voluntary ju risdiction (frl!i­ willigc Gerichtsbar/,·eit), provided nothing to the contrary i I con ta i ned i n this Act. The court shall arrange oral argumc.nts when so requested by one of the parties. The terms of Ar­ t icle 14. paragraph (6), shall app ly accordingly.

(3) For the purpose of jud icial procedu re. the parties shall arrange to be rep resented hy at tomeys a u thorized t o appear in courts within the jurisdiction of this Act.

(4) Application for judicial decision shall be lodged in wri t ing with the Oberlandcsgerich t. The appl icat ion shall he accompanied hy documents wh ich a r e relevnnt for the pur­ pose of reaching a decision. TF the purpose of the appl icat ion i s to oppose the determination o f the terms of the agreement hy the AdJitnltion Commissiou. the appl icant shall specify what form of detenninat ion he cousiders equi table; further. he shall mention any circumstances which tuay he rclevaut to the clt: tenninat iou.

(5) The court's judgu1ent sl 1al l state the rca,;ou,; fur thl' decision. If the effect of the decision is to re-de termi n e th1· terms of the agreement, it shall replace tl11· relevant arrauge­ ments made h y the part ies.

(6) Snhject to anything to tlu: contrary I 'OI Itaincd iu thio

Act, the judicial costs shall he governed hy the provisions of the official costs sched•dc. The fee charged for the procednr•· shall he double the full r,e- It shall l1e reduced to the full fcl' i f the app l ica t ion is w i thdrawn before a n y jud icial decisiou is 1nade. The COll i '! 1nay at .its d iscretion cl 1arge the court costs, in whole or in part. to U I I L' of ' the parties.

Dulic., of 1/u• orgr111i;:;er

Ar1icle l o . ( 1. ) Organizer;; of pnh l i !' CUi l l t l l l l l t ication>< o f copyrightctl works ><hall he l'o n· the event obtain the all­ thori?.a t ion o f tlw collt ·eting oocil'ly which ad1n in istcr till' l icences for such work .

(2) After the event tlte urgan izet· shall send the collect­ ing society a l ist of the works used a t the t•vt•nL This shall not apply tu the presentation of a work by oOnnd record. or to eOLt l l l l l l l l icatiol l of broadcast; of a work.

(3) I nsofar as information for the a pportionment of in­ come from adtninistcring right to t'Oillll l !tnicate hroadcasts is

uecded front the broadcasting organizations which have or­ gan ize d the hroauc;tsts. ueh orgauizat ions are rcqu in·d to provide til l ' co ll ect i ng soci t • t i t's wi th Snl'h i n fo rrna tion aga i ns t paynH'ttt of l it P i r n.pt·ns.·s.

1•:.\Tiu. it•t• juri. tlictiu11

Article 17. - ( I ) Exclusive juri·dict iou fo r l i tiga tion con­ cerniug cla ims hy a co l le et i ng society for infr iugemen t of a r igh t to licence or gra n t an authorization admin istered hy i t shall reside with the court i n whose area the action for in· fr ingcmen t is bro ugh t , or in which the infr inger has h is legal domicile. A rticiP 1 05 o f the Co pyri gh t Act shall remain un­ affected.

{2) If, in conformity w i th clause 1 o f paragraph ( l ) , more than one co urt has jur i sd ict io n to decide a series of actions against the same infriuger, the co l lecting society may hring all its claints lwforP onf' o f the;;t' courts.

SECTlON I l l

Supervision o f the collectin ( socie ty

Super1'isi11g authority

Article lB. - (l) The supervising author i ty shal l he the Patent Office (Patentamt).

{2) Any supervision o f the co l l ec ti ng socie ty uuder a ny o ther lega l provisions shall he exercised i n conjunction w i th the Pa ten t Of f ice .

(3) Decisions made ou applicat ions for au thoriza ti on to carry on business {Article 2) a n d on revocation of authoriza­

t ion (Artic le 4) sha l l he mad e h y the Patent Off ice, in agree­ ment w i th the Bunt!eslwrtellamt. If no such agreerucnt is poss ible. the Patent Office sha l l submit the case to the Federal Minister of Justice, whose directives, made after consultation w i th the Federal M i uisler o f Econo111y. shall rep lace such agn•cntenl.

T!tf' flllrfJ II. e 11/ SliJJf!ITi. ioll

Article 19. - ( l) The supervising au tho ri ty shall ensure that the col lect iug soc i ety faith fu l l y di cha rgPs it oh l iga ti ons under this Act.

(2) The supc rvis i ng au tho ri ty may at all limes denr<1n d front the col lect ing society infomtat ion on any matters con­ ce rn i ng the conduct of the business. and require to sec tl tc oc iety's hooks or other evidence releva n t t o the business.

(3) Tl11• superv is i n g au thori ty i aut l10 r izr d to a t tend hy proxy t h e soc ie ty's general meeting. and al o a n y met·tings o f any supervisory hoard or a n y advioory hoard which may exis t .

{-1·) Should ev idence indicate tha t a person empo wered to represen t the co l le ct ing society e i ther hy law or· u nder the society's articles lacks the rel iahi l i ty needed for the exercise

of this act iv i ty, in order to avoid rl'vocatiou of authoriza tion

thl' supervising a u thori ty shall. 1 1 11der A rt i c le 4, paragraph ( l ) . i t e m l, s e t a d a te f o r his reca l l . The supervising a 1 1Lhorily may forhid him to Pxercise hi act iv i ty f1 1 t ·ther pt ·nding ex­

p i ry of the date, h o u l d tltis lw nen·ssary for the purpost· of prt'Vt'n t i n g serio 1 1 d e t rin tf'n l .

NATION -It u:CI!:'L.-IT/O,Y 27l

Duty to 11otify

Article 20. - The collrctiug soc ie ty shall be rcq1 1 ircd to infornr the supervising author i ty of any chaugc concerning

the persons t'mpowered by law o r hy art icle to represent thetl l . l t sha ll i tntnl'diately furnish the upervisiug authority with ropies of:

I . any a!l l l ' l ldntent to the art icles;

2. the schedule of cha rges and any ;tlteration thereof; 3. t·he inclusive contracts;

'1·. agreements wi th fore ign co l lec t ing societies; 5. the resolutions of the antHtal meeting, of any supervisory

hoard or adv isory hoard and of all committees;

6. the bala nce sh ee t, annual repor t and audi tors' t·eport;

7. any decis ion in jud icia l or oHicial proceedings to which i t is a party, insofar as the supervising authority may

dentand.

SECTIUN IV

Tnmsitional and penuanent provisions , MOlle/({ry fJellallies

Article 2 1 . - The Administrative Execution Act of Apr i l 27, 1 953 (Bundesge:selzblall, I, p . 157) , shal l apply to the execu tio n of admin istrative ac ts issued in Jlursuance o f th is Act, p rovided that the peua l ty may not exceed l O,OOO German !narks.

Vio/ativ11 of spcrecy

Article 22. - ( l ) Auy person who un lawfu l ly discloses a t hird - par ty secret, P.S JWCially an i ndustrial or commercial se­ cret, which has beconte known to h i m in his capacity as member o r official of the su-p e rvisi ng au thor ity {Article 13, paragntph 1 ) , shal l be liable to up to one year imprisonment and a fine, o r to one of t hese pena lt i es.

{2) I f the person who commits t he act does so for the sake of a reward or w i th i n t e n t t o enrich himsell' o r another person, o r to cause harm to another person, the pena l ty shall be u p to two years imprisonmeut; in addi tion, a f ine may be i mposed . A ny person who un lawfu lly makes use of a secret. especial ly an industrial or commercial secret, which Juts be­ conte known to lt inr u ud e r paragra ph { l ) shall also he (l l l l t · ished.

(3) Prosec11tion sltall tak r· placC' on ly 11pon comp la in t of tlte injured party.

Existing collecting societies

Artic!P 23. - ( l) Co llect ing societies already existing when this Act comes into fot·ce may contiuue their activities at exist ing levels up to one year af ter the effective date of th is Act witl to1 1t the authorization requi red under i t.

( 2 ) The supervising authori ty may, on request, exempt such a col lect i ng soc iety d uriug a per iod up to one year after the effective d ate of this Act front i nd iv idual obliga-tions in­ cutnllt 'nt ou i t under t h is Act.

(3) The supervising authority ntay, on req uest, a p p ropri­ ately extend the periods ntl'ntioncd in paragraphs {l) < t l ld (2) once o r severa l t intcs i n fa vou r of a col lect ing society, hut in any t·asc not lll'youd Dceetui H'r 3 l , 1969.

272 r.Ol' l " IOC /-1'1' - /Jf.;[Ei\111/o.'R J%:;

Arue111!111ellts to tire Act ugainst restrictions 011 colllpCtition

Article 24. - The Act agaiusl restrictions on competit ion shall be amended as follows:

l . iu Article 91 , paragraph (1), senteucc l, there shall be iuserted following " Articles 100, 102 ": " , 102 a) ". The followiug paragraph (3) shall also be added to Article 9 1 :

" (3) The provisions o f Article 14, paragraph ( 1 ) , sen­ teuce 3, of the Act of Septe1i lber 9, 1965, dealiug with the Administratiou of Copyright and Related Rights ( Bwulesgeset=blatt, I, p. 1 29-1) shall remain una ffected " ;

2. after Article 1 02 the following Article 102 a) shall be added:

" Article 102 a)

(1 ) Articles 1 and 15 shall not apply to the formation of collectiug societies which are subject to supervision p ursuan t to the Act dealing with the Administration of Copyright and Related Rights, nor to agreemeuts or reso­ l utions to l imi t competition 011 t he par t of such collect­ ing societies, if .aud to the extent such agreements or resolutions relate to activity for which authorization is required under Article 1 of the Act dealing with the Administration of Copyright and Related Rights, and have been reported to the snpet·visiug authority. The supen·isiug au thority shall determine further details o f the conten ts o f the repo1·t. I t shal l forward the reports to the Bwllleshartellarnt.

(2) The supervising authority may forbid collecting societies fl-ou1 undertaking cet·tain measures, and may declare inoperative contracts and decisions which consti· tute an abuse o f the mad;:et position obtained by reason of the exemption from Articles 1 to 1 5. I f the contents o f an exclusive contract or a contract concluded with a broadcasting orgauizatiou has been determined in the manner required by the supervising authority pursua n t to Article 14 of t h e Act dealing with the Administration of Copyrigh t and Related Righ ts, the Bundeslwrtellamt shall have powers under this Act only to the exten t that the performance of the coutract constitutes an abuse.

(3) Dispositions in conformity with this Act which concern the activity of collecting societies shall be made hy the Bu.ndeslwrtellalllt after consultation wi th the Rt lper­ vising au thority " ;

3. i n Article 105, following ·· Articles tOO. 102 ,. there shall he inserted : ", 1 02 a) ''.

Amenrlme11t tu the Federal Fee Act /or Lawyers

Article 25. - The following Article 65 shall be inserted 111 the Federal Fee Act for Lawyers of J uly 26. 1.957 (Burufp_,_ geset=hlall. I. pp. 861 . 907) following Article 65 h) :

" Article 65 b)

Procedure u11cler the Act dealing with the Ad111inistrutir111

of Copyright u11d Related Rights

In the procedure before the Oberlwulesgericlu pnr­ Silant to Article 15 of the Act dealing with the Admin is­ tration of Copyright a ll(l Related Rights of Septe111ber 9, 1965 ( Bwulesgesetzbluu, 1. p. 129,!), the provisions of this section shall apply as appt·opriate. The fees shall be determined according to Article 1 1 , paragraph ( 1 ) , sen­ tence 2. "

Abrogatiu11 of [Jruvisio11s

Article 26. - Upon the effective date of this Act, thd following legal provisions shall be abrogated, insofar as they have no t already become inoperative:

l . the Musical Performance Rights Mediation Act of J uly 4, 1933 ( Reichsge etzblatt, I, p. 452) ;

2. the decree of February 15, 1 934, regulating the applica­ tion of .the Musical Performance Rights Mediation Act ( Reichsgeset=blall, I, p. 100) .

Application i11 Land Berlin

Article 27. - In conformity with At·ticle 13, paragt·aph ( 1 ) , of the Third Transitional Act of January 4, 1952 (Bwules­ gesetzblatt, I, p. 1 ) , this Act shal l also apply in Land Berlin . Ordinances issued pursuant to this Act shall also apply in La11cl Berlin i n accordance with A•·ticle ]4 of the Third Tran­ sit ional Act.

Effective dare of this Act

Article 28. - ( 1 ) Article 14, paragraph (7), shall become effective on the day following the promulgation 1 ) of this Act.

(2) The remainder of this Act shall become effective on January 1 , 1966.

I ) l'nuuton( �akd Seplt·mlwr Hi. l 91i:..