How did these 15 questions come about?
The questions have been put together by representatives of consumers' interests. National copyright experts from the 27 EU Member States provided answers under their respective jurisdiction. The European Observatory coordinates this work in the context of its Working Groups.
* Diese Fragen stehen auch in deutscher Sprache zur Verfügung.
Status date of the answers for Germany: 02/2020
1. What does copyright and related rights mean and cover, and is it the same all over the world?
7. Am I allowed to give a copy of a work protected by copyright to a family member or a friend?
10. What are copyright levies?
15. How do I know whether a work is offered legally or illegally online?
1. What does copyright and related rights mean and cover, and is it the same all over the world?
Copyright, the German for which is literally ‘authors’ rights’, protects creations of the mind (‘works’) by authors in the literary and artistic fields (in the broad sense), such as musical compositions, paintings, photographs, drawings, or novels and other writings; accordingly, an author can only be a natural person (a human who has a mind) and not a company. Protection is justified on the basis of the fundamental right to property under the Constitution (with regard to economic rights) and is considered a reward for the author whose creations enrich culture and society. In contrast, related rights (meaning rights related to authors’ rights) are rights granted by law for selected achievements in the cultural field that are not authors’ works, but are considered an artistic achievement or a (technical, financial or organisational) investment that is culturally important enough to be protected (and may be vested in legal persons). Examples are the rights of performers, such as musicians or actors, in their performances (which are not works, but only interpret works); of producers of sound recordings in their recordings (i.e. recordings of works but not in themselves works of the mind), and broadcasting organisations in their broadcasts (to be distinguished from works of the mind that are broadcast). These differences in the object and justification of protection are reflected, inter alia, in the scope of protection of copyright (a broad right of exploitation as a matter of principle, also covering unnamed uses, while the law only specifies examples for individual rights) and related rights (only specifically mentioned rights are granted), and the longer duration of authors’ rights, and others. The situation described in this answer, which applies to Germany, corresponds to that to be found in countries using the Continental European legal system, which contrasts with the Anglo-Saxon system, in which certain concepts and principles are different.
2. Who owns copyright and how does copyright benefit creators, 'rights holder(s), consumers, society, economy and culture as a whole?
Authors’ rights are owned automatically by the natural person who created the work, that is to say, the author. This is to a certain extend true even if he or she is an employed author. If several authors have created a work together according to a common plan, and their contributions cannot be exploited separately, they own the authors’ rights in the work jointly as co-authors. This is also true for film authors (such as film directors) who are not authors of pre-existing works such as the screenplay or music not directly created for the film. Authors’ rights protection benefits authors in their economic interest in earning income from the exploitation of their works (through their economic rights and certain safeguards regarding their position both in individual contracts with publishers and others to whom they license their rights for exploitation, and in collecting societies). This protection also benefits authors in their personal, non-economic interests in the work in general and in their artistic connection with their work in particular, mainly through their right to be named (or not named) as author of their works, or to choose a pseudonym, the right to prevent distortions of their work, etc.. Related rights protection benefit the relevant rights holders in their respective interests: for performers, in earning income from the exploitation of their performances (through their economic rights, and certain safeguards regarding their position both in individual contracts with producers and others, and in collecting societies), and in their personal, non-economic interests therein, in particular through their right to be named (or not), or to choose a pseudonym, and the right to prevent distortions of their performances. Other holders of related rights benefit from their rights in particular in their interest in recouping their investments and earning income from the exploitation of their achievements. Authors and holders of related rights also have an interest in gaining respect, through such rights, for their contributions to lively and healthy cultural production. Their contributions, often enabled by copyright and related rights, benefit consumers by enriching culture, leading to cultural diversity and thereby enriching society as a whole; often, quality products could not be created and produced if they were not protected by copyright and related rights. Furthermore, since taxes are paid on the basis of income from the exploitation of these rights, they also benefit the economy and thus the whole of society. Publishers and others to whom rights were granted by authors also benefit from the income from exploitation in so far as the income (if sufficient) enables them to invest in new works and young authors or in non-mainstream works that otherwise could not be published for economic reasons. In this way protection again benefits cultural diversity and thus the needs of society as a whole.
3. Do I automatically get copyright protection, for example, if I take a photograph with my phone, or do I have to register my work to get protection?
You do not need to register your work to obtain protection. However, your work must fulfil certain conditions in order to be eligible for protection: in particular, you must have created it (or, in the case of a joint work, your contribution must have been creative) in the sense that it expresses thoughts or feelings, has a certain degree of individuality, and is not banal or created in a way in which anyone would have created it. Voluntary registration is possible only for anonymous and pseudonymous works, when the author wants to reveal his or her true name. This has only significance for the duration of protection of the anonymous or pseudonymous work.
4. What is copyright infringement? Can I get in trouble for copyright infringement? What if I wasn't aware that I infringed something protected by copyright?
Infringement of authors’ rights or related rights occurs when someone does an act (such as uploading a protected work or other achievement) that is covered by the exclusive right of an author or other rights holder, if this act is done without the prior authorisation of the author or other rights holder, and if the law does not provide for a limitation of that right in favour of, for example, the consumer. Accordingly, first, the work, performance, recording or other object must be protected by authors’ rights or related rights. Then, the act itself must be covered by one of the exclusive rights and must be done without the prior authorisation of the right holder, and none of the applicable limitations of the right, such as for private reproduction, must apply in the case in question. You might get into trouble if all these conditions are met: for example, you might be subject to an injunction (ordering you to cease the infringing acts). If you had knowledge or must have known that you were infringing a right (i.e. if you were negligent), you might also be liable for damages. In addition, you might be subject to up to three years of imprisonment or a fine. If you were not aware that you had infringed rights protecting a work or other object, you might still be subject to an injunction, and also to the other sanctions listed above if you at least had reason to believe that you were committing an infringement (in other words, if you were negligent).
5. Under which conditions can I use a work protected by copyright created by another? I was told that using works created by others is simply a quote and thus is always allowed.
First of all, you may use a protected work or protected subject matter if you have the author’s or other rights holder’s authorisation, whether through a contract or other agreement, or through a Creative Commons licence or other open content licence. Secondly, you may use a work or other protected subject matter even without such authorisation if the law provides for a limitation of the author’s right or related right in your favour and if all the conditions of such limitation are met in the actual case in question. This may in particular be the case for copies you make for private purposes, or in order to use a quotation from a work in your own, independent work. However, this is only allowed — as with all limitations of authors’ rights — under specific conditions. In particular, a quote is allowed by law only in respect of an already published work. It must serve the purpose of a quotation, and the use (quotation) must be justified in its scope by the particular purpose. Examples of purposes of quotation are criticism or assessment of the quoted work, or in order to substantiate one’s own analysis or thoughts through the quotation, but not simply to add further thoughts to one’s own work. There must be an internal relationship between the element quoted and the work in which it is quoted, such as through an intellectual discussion in particular. In addition, the name of the author and source must be indicated, unless this is not possible despite certain inquiries.
6. Am I allowed to use music protected by copyright as a soundtrack for a home video that I made and want to upload on a video platform?
No, you are generally not allowed to do so, unless the rights holder has allowed it, in whatever way, such as through a Creative Commons licence
7. Am I allowed to give a copy of a work protected by copyright to a family member or a friend?
Yes, at least insofar as the private copy is allowed, you are allowed to give a copy of a protected work to a family member or a friend with whom you have personal ties (but not to anyone else, even if called a ‘friend’, for example in the context of social media such as Facebook).
8. Am I allowed to download a work protected by copyright from the internet and does it matter which technology is used and whether I download only parts of the work?
Yes, you are allowed to download a work from the internet if the rights holder has agreed to this (for example, through a legal website) or if it is done for private purposes (with certain legal restrictions) and from a source that is not obviously illegal. Downloading is also allowed under further conditions for your own scientific, non-commercial use. It may also be allowed, in particular circumstances, in order to quote a work within your own work (see answer to question 5 concerning “quotations”). Parts of works are generally also protected, namely if they are personal intellectual creations in themselves and not only, for example, individual words or very small or banal excerpts from a work. It does not matter what technology you use to download a work, since (unlike for most kinds of streaming) downloading produces a copy.
9. I tried to copy a movie from a DVD to my computer, but could not do it because of something called ‘Technical Protection Measures’. What is that and am I allowed to get around them in order to make private copies?
Technical Protection Measures (TPMs) are technical measures that either prevent the creation of a copy of a protected work or other protected subject matter, or prevent access thereto. They have the purpose of enabling real protection of authors’ rights and related rights in a digital environment, since without TPMs, which are a technical means of controlling exploitation, such legal protection often cannot be enforced. You are not allowed under German and EU law to circumvent such measures yourself, for example by applying some means that overcome those measures and enable copying or access. Only in certain cases determined by law, and not in connection with private digital copying, may you ask the rights holder to give access to a copy of his or her work, in whichever way he or she chooses. Rights holders are obliged, in such cases (but not in the case of private digital copying), to provide you with the necessary means to enable you to use the work in a way covered by the particular limitation of copyright.
10. What are copyright levies?
Copyright levies refer to the statutory right of authors and others (holders of related rights, such as performers and producers of recordings) to receive equitable remuneration for certain uses of their works and other protected objects, in particular for their reproduction for private purposes by consumers. The law permits to make private copies under particular conditions (in particular, a source that is not obviously illegal must be used), with the result that the author or other rights holder cannot prohibit these uses and they are legal for consumers. However, since such uses are normally quite extensive, the law ‘compensates’ authors and other rights holders for the legal permission given to consumers to make private copies through a right to remuneration. This remuneration must be paid by producers (and importers and dealers) of equipment such as copying machines, printers, etc. or of storage media (such as blank CD-ROMs, hard drives, etc.), and by operators of photocopying machines and similar, such as libraries, or copy shops that offer the use of such machines for a fee. The right is administered by collective management organisations (CMO) for the benefit of their rights holders (e.g. authors); the remuneration is later distributed by the CMO, on the basis of democratically determined distribution keys.
11. Am I infringing copyright if I watch a movie by streaming it instead of downloading it from the internet?
Watching a film from a legal source, of which there are many on the internet, never constitutes an infringement of authors’ rights or related rights. Nor will you infringe any rights if you watch a film that is no longer protected by authors’ rights or related rights in Germany. Otherwise, since all the different kinds of streaming involve, to a varying extent, acts of reproduction, you might infringe authors’ rights or related rights, at least if you stream from an obviously illegal source. So it is advisable to access only sites that offer legal streams.
12. If copyright-protected works are included into my posts automatically by social media platforms, am I responsible for this and is this a copyright infringement? What if I link to them or embed them in my own website or blog?
If copyright-protected works are automatically posted on your wall in social media, and the other person has not obtained the author’s consent for such use, with the result that authors’ rights are infringed, you might be held responsible for this and it might constitute a copyright infringement, although this is not yet clear from case-law. In any case, it is likely that you will be held responsible if you saw the post and knew or could have known that it was infringing and did not then immediately remove it from your wall. So it might be safer to remove such posts from your wall. You may link to works that have been uploaded by the rights holder for free public access on the Internet or embed such works on your own website or blog, unless the rights holder has used TPMs to protect the work. If the rights holder has not consented to the upload, and the upload is thus infringing, you must not link to it or embed it in your blog, if you knew or ought to have known the illegal nature of the publication (when linking with the pursuit of financial gain, knowledge is presumed).
13. When I create a work and upload it online, terms and conditions of many sites ask for me to transfer my copyright to the site. Does that mean I lose all those rights in them for the future?
No. Under German law, you cannot transfer copyright at all. You can grant licences for particular uses. If it is not clear what uses are covered by the licence, you retain all rights not specified in the contract and not covered by the purpose of the contract. In addition, you may specify, when you grant the licence, what uses you want to cover in particular and for what time period you want to grant the rights, as well as whether you are granting a simple or exclusive licence. You may license future, as yet unknown, types of use, but in this case you have a right of revocation as soon as the platform wants to commence such use; if you do not revoke your right, you usually have a right to claim remuneration for the new use. Furthermore, you will always keep your ‘moral rights’, namely, in particular, the right to be named as author of your work or to choose a pseudonym or to stay anonymous, as well as the right to object to any distortion or other change to your work (except for changes that you cannot reject in good faith).
14. My avatar is based on my favourite movie star, cartoon character or sports club. Can I get in trouble for infringement of copyright or any other legislation because of this?
Yes, if you use copyright-protected elements (in particular cartoons) and do not have the author’s authorisation, you may get into trouble for infringement of these author’s rights. Similarly, using the image of a film star without his or her permission may conflict with that person’s personality right (in the form of image protection). Likewise, you may, in a specific situation, infringe the trade mark rights of a sports club or a film star if you use their logos or the like for an avatar. As long as you do so only for private purposes, however (that is without any intention of gaining a profit), you are unlikely to infringe any trade mark rights, since in this case, no business activity is involved.
15. How do I know whether a work is offered legally or illegally online?
Under German law, it is not necessary for the consumer to be 100% sure whether a work is offered legally online. Nor is it necessary for the consumer to make inquiries in order to be entirely sure whether it is legal or illegal. However, the source copy of the work must not be obviously illegal. A consumer should refrain from making a private copy if there are obvious indications that the source was either made illegally or made available online illegally. Such indications may be, for example, that a film is already available online but has not yet been released in cinemas (or that a different work has not yet been published by the producer or publisher itself, such as can generally be seen from the websites of the same producers or publishers). The type of advertising or the price (or lack thereof) may also indicate that the work is being offered illegally. A work may be considered obviously illegal if it can be easily recognised as illegal, or if there cannot be any serious or reasonable doubt that it is made available illegally. Often, particular websites are generally known for making works available illegally. In contrast, the consumer may find links to and other information on the internet or elsewhere concerning legal sources of works.
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