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.