Patent Law Office

Dr. Ernst-Peter Heilein

  • Intellectual Property
  • Gewerblicher Rechtsschutz
  • Propriété Intellectuelle

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Protection of Copyright

Subject matter

Until the commencement of the copyright act on January 01, 1966 works of literature and of pictorial art were protected by different laws. The applicable copyright act rules the rights of the authors concerning their works of literature and art and the rights concerning creative activities which are important to a lesser extent. Creations concerning typically the copyright are for instance cited; in the second amendment of the copyright act dated May 23, 1985 programs for data processing (software) have been legally accepted as being protectable by the copyright act.
The protectability by copyright requires that the work is a personal intellectual creation of the author. In jurisdiction and literature there are different interpretations concerning the criteria which are applied to estimate the existence of the requirements. Therefore the main focus of every copyright verification and the answer to the question of the protectability depends upon the individual case.

The individual right

The view hold by jurisdiction and by the majority of literature is that the right of the author (as well as an inventor) is a uniform right from where claims related to property right and personal claims arise. In particular the right of publication, the right to recognize the authorship and the interdiction of the distortion of the work are definitions of the author’s right of personality. The cited exploitation rights substantiate the author’s power related to property right; above all the right of reproduction and the right of distribution is important in this connection. Furthermore the author can also use such possibilities of exploitation resulting from a future development of technology.
It might be of interest for the author to allow others to use his work. Since also the rights of exploitation includes copyright and individual right components the possibility of assignment of copyright power is characterized by the individual right. According to the LUG from 1901 and in the KUG from 1907 the assignment of the copyright as a whole was provided. In the following period jurisdiction and literature attached more and more importance to the author’s individual right. The consequence was that the idea of unassignability of the individual right was included in the copyright act from 1965, which today mainly determines the understanding about copyright. Due to their individual right content rights of exploitation too are therefore not assignable as a whole.
The law provides a disposition from the author concerning the exploitation rights in the way that he concedes other rights of use. This cession for working is not a form of true transfer of rights: The acquirer doesn’t obtain an absolute right but only an obligatory authorization. The abandoner is obliged to agree with the working, the essential of the individual right remains by the author. The relationship between exploitation rights and rights of use is to be understood in that way that rights of use are independent but can correspond only in its contents to the exploitation rights. In this way the authorization of use for others represents a sort of burden for the copyright whereby it is doubtful if beyond that the author can assign single individual right authorizations or concede them for execution.
The copyright comes into being at the time of the conception of a work protectable by copyright, a registration is not required. The right expires 70 years after the death of the author.