Things as diverse as written compositions, compositions, drawings or works of fine art as well as films, photographs or computer programs are protected by copyright. In contrast to industrial property rights such as design patents or trademarks, the protection for the originator applies as soon as the creation of his work has been finalized. The moment the composer declares his composition to be accomplished, copyright protection is granted automatically in the Federal Republic of Germany.
Authorship on Copyright
In order to be able to demonstrate the authorship of a work, the originator can apply for the work to be registered in the intellectual property register with the German Patent and Trademark Office. The special characteristic of copyright protection in comparison to patent protection is that only the specific form in which the work is expressed is protected under the Copyright Act. This means that, according to the Copyright Act, not the idea or the thought behind a novel are granted protection, but only the formulation of this idea by the novelist. Due to this circumstance disputes between authors and plagiarists arise again and again. The disputes mostly relate to the question as to who wrote the original version and who attempted to use the original as plagiarist.
By copyright the creator of the protectable works is conferred the right to decide about the way of reproduction, publication and the redesign/processing. Generally, a reproduction of his work requires the originator’s prior consent.
Copyright on „related rights“
In addition to the conventional copyrights relating to drawings, written compositions or compositions, there is also protection for computer programs. Strictly speaking, the rights in computer programs are also copyrights. However, these rights differ from the ordinary copyrights in some ways.
The rights in a photograph or in a film are so-called “related rights”. The issue is the determination of the individual contributions of the film producer, the film director and other persons that were substantially involved in the film production. The purpose of the related rights is to give commercially active entities the opportunity to exploit the property while excluding third-parties from doing so.
Other related rights are, for example, the rights of the so-called “performing artists”. Performing artists are, for example, orchestra’s musicians who, on the basis of musical notes from a contemporary composer, perform the composer’s work. The purpose of the related rights of performing artists is the commercial exploitation of the performance of a musical work that has been recorded and is intended for multiple playbacks. Therefore, the contributing participating artists should also receive a financial benefit. This is effected by the so-called collecting societies.
Copyright on software and databases
The Copyright Act governs the rights as well relating to computer programs and databases. “Software” itself is a creation of a work which is copyright-protectable as stated in the non-exhaustive list in § 2, section 1 Copyright Act. In contrast to the classic rights relating to works which are copyright-protectable, e. g. compositions, works of visual arts or written compositions, the writing of software is usually not performed by single persons, but by employed software architects and software programmers who compose the software as a team in most cases. This fact is taken into account by the regulations relating to the Copyright Act in §§ 69a to 69, stipulating that the software rights originate directly with the employer. Therefore, according to the law, the employer is entitled to all economically valuable rights for exploitation.
By classifying software as copyright-protectable work only the specific programming in its original form is protected against takeover, imitation or duplication. Unlike a patent, not the abstract creation, i.e. the designed solution to solve a problem by software, is protected, but the entire programming of the Source Code.
Basically, software is not patentable. Although software is usually of a high technological nature, there is, however, no patent protection for software in the Federal Republic of Germany or in the member states of the European Community in accordance with the relevant regulations.
Whilst in respect of “off-the shelf” software most of the legal questions have already been solved and legally clarified, there are difficult legal issues to be taken into account when setting up contracts for the programming of individual software or in respect of adaptations to individual requirements. In particular, regarding contracts set up for the development of individual software, a careful drafting of contracts is essential for both parties in order to establish a basis for the contractual obligations of both partners in order to be able to determine mutual claims and potential deficiencies arising in the course of the cooperation and the liability of same, and therefore the contract must include “exit strategies”.
Pursuant to the European Database Directive on the legal database protection, the fundamental database protection was added to the German Copyright Act. However, the object of protection is not a potentially copyright-protectable content of a data bank, but mostly the considerable economical effort which is run by the creator of the database in order to collect, systematize and keep the data available for third party use via the database. In this respect the database protection within the Copyright Act has only a regulatory status, compared to the rights of a composer.