Exploitation of intellectual creations.

Copyright and Collecting Societies

As part of private law, copyright law covers the scope, content, transferability and enforceability of these rights. This includes, for example, exploitation rights, statutory remuneration claims and moral rights. Personal intellectual creations are to be protected against unjustified use. This may include, for example, linguistic works and computer programs, photographic and cinematic works or works of music and the fine arts. Violations of copyright, e.g. through plagiarism, pirated copies or the unlawful use of pictures and texts can give rise to claims for injunctive relief and damages or even be punishable by law.

Copyright law is thus not only the legal basis for the entire entertainment and media industry, it is also playing an increasingly important role in those branches of business that exploit copyright-protected works, such as photos, music or videos, incidentally or as part of advertising. The scope of copyright issues is complex. In addition, there are ongoing amendments in law, to keep up with ongoing digitization and the increasing cross-border provision of copyrighted content.

Digitization challenges copyright law

The way in which creative goods are produced, distributed and used has been fundamentally changed by digital technologies and the Internet. Today, media - once digitized - can be duplicated, edited and sent worldwide via the Internet without loss, quickly and practically. While this has enormously improved the participation of individuals in cultural life, it has also made it easier to infringe copyrights. The dispute over image rights, content theft on websites or warnings of copyright infringement on upload platforms such as YouTube are now commonplace.

This results in a multitude of legal questions. These include, among other things, the scope of copyright exploitation rights and restrictions (in case of online distribution or linking of online content), questions of law enforcement (in particular protection against unauthorized use and exploitation of digital copies) and the responsibility of platform operators (in general and specifically for user-generated content).

In addition, questions regarding appropriate remuneration (especially claims for subsequent remuneration under copyright law), the licensing of digital content, individual rights clarification in the case of copyright processing (e.g. for music in advertising) and rights clarification for mass online use must also be answered. Of great importance is the collective administration of rights by collecting societies and the clarification of their tariffs in the online sector or for analog uses.

Effects of cross-border offers on copyright law

Digital exploitation in particular is not - as has been the case to date - largely restricted to a single national territory, but in most cases takes place across borders. This gives rise to further questions regarding applicable law, territorially valid licenses, how to deal with geo-blocking or the jurisdiction of the courts in the event of infringement or the enforcement of domestic court decisions abroad.

Need for adaptation of copyright law

These legal challenges always put legal relationships between authors, holders of neighbouring or exploitation rights, work intermediaries (producers, broadcasters, publishers, collecting societies, platform operators) and consumers to the test. The technical possibilities of digitization and the need to balance conflicting economic interests require new, more flexible legal solutions.

The European legislator has recognized this need for reform in two current directives (EU) 2019/790 on copyright and related rights in the Digital Single Market and (EU) 2019/789 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting orgaisations and retransmission of television and radio programmes, which had to be implemented into national law.

With the “Act on the Adaptation of Copyright Law to the Requirements of the Digital Single Market” of May 31, 2021, the German legislator has fulfilled this obligation. The law (partly) came into force on June 7, 2021 and contains numerous innovations in the Copyright Act (UrhG) and the Collecting Societies Act (VGG).

For instance, a copyright for the reproduction and making available to the public of press publications was introduced for publishers, existing provisions of copyright contract law, i.e. the rules for contracts between creators and exploiters, were adapted, and collective legal protection was strengthened.

The law also includes an exception  to the right of reproduction in certain cases of text and data mining, a key technology for machine learning and artificial intelligence. In addition, the use of copyrighted works for the purposes of caricature, parody and pastiche is permitted.

Under the VGG, collecting societies will in future be able to grant collective licenses with extended effect. Publisher participation is also reorganized: Publishers will again participate in the remuneration for legally permitted uses (e.g. private copying). Furthermore, new provisions in the UrhG regulate the online distribution of television and radio programs, e.g., via livestream and media centers.

Responsibility of access/host and platform providers

The Act on the Adaptation of Copyright Law to the Requirements of the Digital Single Market created, in particular, the new Copyright-Service-Providers-Act (UrhDaG), which entered into force on August 1, 2021. The UrhDaG introduces a new law that implements the requirements of Article 17 of the DSM Directive into German law and reforms the copyright responsibility of upload platforms for the content uploaded by their users. Service providers now perform a copyright-relevant act of communication to the public and are thus fundamentally liable for copyright infringements not only for injunctive relief, but also for damages. The regulation thus deviates fundamentally from the general liability regime as set out in the Directive on Electronic Commerce 2000/31/EC (eCommerce Directive), which provides privileges for the liability of access and host providers.

The aforementioned service providers can avoid this extensive liability under UrhDaG by complying with specifically regulated duties of care. These include, on the one hand, the obligation to acquire licenses for the public communication of copyrighted works and, on the other hand - for unlicensed works - an automated and an individual blocking procedure (filter technologies).

We support you in the optimal exploitation and monetization of your digital content and advise you on all aspects of production, purchase or distribution.

Our range of copyright advice covers the protection, use and exploitation of copyrights and neighbouring rights in music, film, software/games, press products, (electronic) books, applied art, artistic performances, etc. Our advice is comprehensive and covers, for example, the distribution of television programs, the use of databases or the electronic lending of eBooks. We draft and negotiate a wide variety of license agreements, prepare legal opinions and represent you in and out of court (including preliminary proceedings). This applies equally to you as a user, author or owner of related rights.

A special focus is on the legal enforcement of user interests vis-à-vis collecting societies and the review of collecting society tariffs before the arbitration board at the German Patent and Trademark Office and, if necessary, in subsequent legal actions.

In addition, we inform you about all European and national legislative procedures relevant to your company in the area of copyright law and support you in placing your interests in Berlin and Brussels.

Our clients are traditional media companies (broadcasters, film production, film rights traders, publishers) as well as platform operators, online service providers, cable network operators, advertising marketers, companies in the equipment industry, content aggregators and authors or artists. However, our clients also include large and medium-sized companies that do not come from the media sector but require copyright advice due to their digital offerings and marketing activities (e.g. viral marketing, social media, sponsoring and major campaigns).

  • Copyright Law
  • Copyright contract Law
  • Licensing agreements
  • Digital Rights Management
  • Legal protection of Databases
  • German Collecting Societies Act
  • Arbitration proceedings
  • Film rights
  • Music Law
  • Publishing Law
  • European copyright Law
  • Provider liability