Germany

Legislation and Materials

• Official legislation (in German) Copyright Act of September 9, 1965, last amended September 10, 2003

• Draft of the German Government for copyright reform as of March 22, 2006

Core Issues

Anti-Circumvention Provisions

Paragraph 95a(2) of the German Copyright Act defines ‘technological measures’ as “technologies, devices and components, which in the normal course of their operation, are designed to prevent or restrict acts, in respect of protected works or other subject-matter protected by this law, which are not authorized by the rightholder.” It shall be noted that only those technological measures are covered which protect works that are subject to copyright protection. Consequently, technological measures applied to non-copyrightable works or works in the public domain receive no protection under this section of the Act. By and large, the definition in para. 95a(2) mirrors the description of the term as set forth in article 6(3) EUCD and does not distinguish between copy and access control technologies as section 1201 of the U.S. Copyright Act does. Moreover, paragraph 95a(2), second sentence uses almost the same wording as the EUCD when defining technological measures as ‘effective’, if “the use of a protected work ... is controlled by the rightholder through application of an access control, a protection process such as encryption, scrambling or other transformation, or a copy control mechanism, which achieves the protection objective.” By explicitly referring to ‘access control’ technology, the German legislator has made clear, in contrast to the position of some Nordic countries, that ‘access controls’ are qualified as technologies aimed at preventing the infringement of copyrights or related rights. However, since the German implementation almost literally copies definitions of critical terms as set forth in the EUCD, it fails to further clarify, among other issues, what has to be considered an ‘effective’ technological protection measure. It has been suggested that only those measures which hinder average users from circumvention are effective measures, while other commentators argue that any technology is covered as long as any activity towards circumvention must be undertaken in order to bypass the control system.

Universal Access

Teaching exception

The German Copyright Act from 1965 as amended by September 10, 2003, states in Section 52a (1) no. 1 the permissibility of

“making available to the public small portions of published works, other short works, or individual contributions to newspapers or periodicals, exclusively for purposes of illustration for teaching, for students and other participants in instruction in schools, universities, post-secondary institutions, and noncommercial career-training institutions. Access must be restricted to a limited circle of participants.”

Section 52a (1) no. 2 allows the “making available to the public to a limited circle of participants of portions of works, other short works and or individual contributions to newspapers and periodicals exclusively for purposes of own research.”

According to Section 52a (3) of the German Copyright Act, the necessary reproductions for the purpose of making a work available in subsection (1) no. 1-2 are permissible as well. Section 52a (4) of the Act imposes an obligation on the users to pay a remuneration for making a copyrighted work available. The payment is collected through a collective licensing society.

Exception for Libraries and Archives

Section 53a (1) Proposal for an Amendment of the German Copyright Act regarding document supply services suggests that

„Public Libraries may on individual request of a user reproduce and transmit individual copies of articles or short works via mail or fax [if this user can invoke the right to make a private copy]. The reproduction or transmission in electronic format is only permissible as a graphics file and [unless the same work is available for download under the licensing conditions of a rightholder]“

Potential effects of this proposal of a copyright amendment are

- Users have to „walk“ to the library

- Libraries have difficulties of assessing whether work is availabe for download

- The exception privileges commercial document supply actors

- Under this provision publishers would be „guaranteed“ pay-per-use requests of individual users