Copyright Law & the protection of Internet-published works

Seminar Paper 2000 44 Pages

Law - Media, Multimedia Law, Copyright


Table of Contents


I. Antiquity
II. The Middle Ages
III. The Invention of the printing press and the system of privileges
IV. The development of copyright and droit dB4auteur
V. The Berne Convention
VI. Conclusion

I. Introduction
II. Subject-Matter of Protection
1. Berne Convention (1886)
a) Digitalized works
b) Multimedia works
c) Conclusion
2. The Universal Copyright Convention (UCC) - (1952)
3. GATT-TRIPS (1994)
4. WIPO Copyright Treaty (1996)
5. EU-Directives
a) Computer Programs Directive (CPD) - 91/250/EEC
b) Database Directive (DD) - 96/9/EC
c) Proposed Directive on Copyright and Related Rights in the Information Society - COM (1999) 250 final
6. German Legislation
a) General provisions
b) Protection of multimedia works
i) Technical depiction (A7 2 I, No. 7 UrhG)
ii) Expressionmode of a computer program ( 2 I, No. 1; 69a II, 1 UrhG)
iii) Movie or movielike works (A7 2 I, No. 6 UrhG)
iv) Protection as a Database
v) Conclusion
c) Conclusion
7. US Legislation (title 17 of the United States Code - USC)
8. Conclusion
III. Persons entitled to Protection IV. Granted Rights
1. Economic Rights
a) Reproduction right
i) International Law
ii) European and German Law
iii) US Law
iv) Conclusion
b) Communication to the public
i) International Law
ii) European and German Law
iii) US Law
iv) Conclusion
c) Sui generis right for Databases
i) International Law
ii) European and German Law
iii) US Law
d) Distribution right
e) Adaptation right
2. Moral rights
3. Conclusion
V. Limitation of Rights
1. System of national copyright laws
2. International Law - the "Three-step-test"
3. EU Law
4. German Law
5. US Law
6. Sui generis right for Databases
a) EU and German Law
b) US Law
7. Conclusion
VI. Term of Protection
VII. Critical evaluation of granted rights
1. Reproduction right
2. Communication to the public
3. Sui generis right for databases



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B7 Hart, Michael - "The proposed Directive for Copyright in the Information Society; nice rights, shame about the exceptions", EIPR 1998, 169.

B7 Hubmann, Heinrich - "Urheber- und Verlagsrecht", 1991 - cited: Hubmann, p.

B7 Kaye, Laurence - "The proposed EU Directive for the legal protection of databases: a cornerstone of the Information Society?", EIPR 1995, 169.

- Klett, Alexander - "Urheberrecht im Internet aus deutscher und amerikanischer Sicht", 1998 - cited: Klett, p.
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- Lewinski, Silke von

A7 "Die diplomatische Konferenz der WIPO 1996 zum Urheberrecht und zu verwandten Schutzrechten", GRUR Int. 1997, 667.

A7 "A successful step towards Copyright and related rights in the Information Age: the new

EC proposal for a harmonisation Directive", EIPR 1998, 135 - in German: "Die Multimedia-Richtlinie", MMR 1998, 115.

- Leupold, Andreas - "Auswirkungen der Multimedia-Gesetzgebung auf das Urheberrecht", CR 1998, 234.
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B7 Nordemann, Axel; Goddar, Heinz; TF6nhardt, Marion; Czychowski, Christian - "Gewerblicher Rechtsschutz und Urheberrecht im Internet", CR 1996, 645.

B7 Reinbothe, JF6rg - "Der EU-Richtlinienentwurf zum Urheberrecht und zu den Leistungsschutzrechten in der Informationsgesellschaft", ZUM 1998, 429.

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B7 Vandoren, Paul - "Copyright and related rights in the Information Society", in: Hugenholtz, Bernt - "The future of copyright in a digital environment", 1996, 153 - cited: Vandoren, p.

B7 Vogel, Martin - "Die Umsetzung der Richtlinie 96/9/EG FCber den rechtlichen Schutz von Datenbanken in Art. 7 des Regierungsentwurfs eines Informations- und Kommunikationsdienstegesetzes", ZUM 1997, 592.

B7 Weatherall, Kimberlee - "An end to private communications in copyright? The expansion of rights to communicate works to the public: Part I", EIPR 1999, 343.

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The legal matrials contained in this paper can be accessed via http://clea.wipo.int.

A. Introduction

"It may be said that copyright law is now at the critical stage of its history..." - J.A.L. Sterling1.

With the development of the Internet and especially the W orld W ide W eb (WWW), copyright law faces new and difficult tasks. Works as the manifestation of ideas no longer need to be affixed to a physical medium in the traditional sense, but can be communicated to the public by putting them in the Internet. This offers the great opportunity of new ideas spreading at rapid speeds and thus contribute to the development of our society.

On the other hand Internet poses a threat to this development by improving the possibilities of pirate copying as Internet published works can be copied without any loss of quality and at as rapid a speed as original publication took place. The threat being, that authors and publishers no longer recieve their legitimate remuneration and therefore are forced to stop publishing, thus bringing social develpoment to a stillstand. In order to prevent this situation an effective copyright protection is needed.

This work will scrutinize, whether existing copyright laws and treaties can handle this task, or not.

B. From Antiquity to the Berne Convention

A short History of copyright protection 2

Like mankind the requirements for copyright laws have developed.

I. Antiquity

During Antiquity authors mainly wanted publicity some even deemed it wrong to sell their works. Those who wanted remuneration to a great extend depended on patronage3.

The want for copyright laws was practically non existent, as there was no market for pirate copies. First because bookprintig was not yet developed and each copy of a work had to be made by hand. And second because most people could not read anyway.

II. The Middle Ages

Since the possibilities to produce large quantities of copies did not substantively change and most people still could not read, there was still no need for copyright laws. Despite this, the first ruling in copyright matters is credited to this time as King Dermott is said to have ruled: "to every cow her calf and consequently to every book ist copy."4

III. The Invention of the printing press and the system of privileges

With the invention of the printing press by Gutenberg around 1450, it became possible to produce large amounts of books in fair amounts of time for the first time in history. Additionally more and more people learned to read. This lead to the emergence of a new trade: publishers and booksellers (in England called "stationers").

They had to make large investments as printing presses and paper still were very expensive. Due to the relatively low prices for books it took them quite a long time to recoup their investments. These stationers therefore were very unsatisfied with the parallel development of publishers who just copied the works of their fair trading colleagues, thus dramatically cutting their costs. Meanwhile authorities became aware that unacceptable material could easily be made public, which called for censorship.

These circumstances lead to the development of the system of privileges in Europe. A privilege was the right to produce a certain book exclusively for a limited term. It was granted by the respective Head of State to the particular publisher ("stationer")5 and was usually subject to several conditions, generally including censorship. The characteristics of a privilege resemble more the traits of a modern patent, but it can be seen as the origin of copyright law. Since authors did not yet demand their rights, privileges were strictly economic rights which did not recognize any moral rights6.

IV. The development of copyright and droit d´auteur

By the end of the 17th century, it became clear, that the system of privileges could no longer be upheld, as authors increasingly demanded their rights. This lead to the first copyright statute ("Statute of Anne" - England) in 1710, which gave the author of a book an exclusive copyright. This right could be sold to a bookseller. In 1793 the French Revolution lead to a change in continental copyright. The Decree of 1793 installed an authorÂs right, which in contrast to the Statute of Anne did not require registration or even publication to be enjoyed. From this point, continental copyright took an entirely different way than the copyright of the UK and the US (which virtually adopted the English law in 17907 ). Being influencend by German philosopher Kant, a moral right was developed based on the idea, that an authors work is an extension of his personality.

This was the origin of the until today persisting two concepts of copyright protection: Copyright (as a strictly economic right, which focuses on the protection of the work and can be obtained by legal entities) and the droit d ´ auteur (as a natural authorÂs right, which grants practically the same economic protection but also knows moral rights protecting the author- creation relation).8

V. The Berne Convention

In the middle of the 19th century, States began to realise that copyright protection was no longer an internal affair, but that their domestic economy was threatened by pirate copying from outside their territories. This lead to a cooperation on international level aiming at a mutual international protection of intellectual property. The outcome of this efforts was the Berne Convention (1886), which formulated a minimum standard of protection and the National Treatment Principle, which means, that each Member State of the Union grants nationals from other member States the same treatment it grants to ist own nationals9. This international development also lead to an approximation between the copyright and the droit d auteur concepts; the so far highlight being the ratification of the Berne Convention by the US in 198910.

VI. Conclusion

As mankind has now developed a technique which renders physical manifestation for the reproduction of a work unnecessary, we will soon see, if there is also a want for a new copyright.

C. Todays Internet-Copyright

I. Introduction

If we want to figure out, whether todays copyright is fit for the Digital Age, we have to determine which kinds of works exist in the Internet.

Digitalized and Multimedia works immediately come into view. Every work needs to be digitalized in order to be published in the Internet. The possibility to combine several types of works (e.g. sound, moving images and text)11 on a single medium (e.g. website) in the digital environment greatly expanded the use of multimedia works, which seem to exploit the chances offered by the Internet best. The realisation of protection for the different kinds of works will be the subject of this paper.

II. Subject-Matter of Protection

In the case of copyright, the first problem that arises is, whether the works needing protection do suit for protection under the different legal regimes.

1. Berne Convention (1886)

The Berne Convention (BC) is the common basis of all modern copyright law, because it is the most widely adhered to international law treaty in the sphere of copyright12. It lays out minimum rules of protection, which Members States have to realize in their domestic laws. Subject-matter of protection are literary and artistic works (Art. 1 BC). These works have to be original creations, which does not mean, that the the underlying ideas have to be new, but that the form in which they are expressed has to be an original creation of the author13. Furthermore, the BC provides copyright protection for collections of literary or artistic works which, by reason of the selection and arrangement of their contents, constitute intellectual creations regardless any existing copyright in the contained works (Art. 2 V BC). I.e., that only such collections are protectable, which contain works, which are protectable themselves14. One of the most important improvements of the BC is the abolition of formal requirements (e.g. registration15 ) realised in Art. 5 II BC. Nevertheless, Member States are allowed to prescribe, that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form (Art. 2 II BC).

But does theBC already offers protection regarding digitalized and multimedia works?

a) Digitalized works

The BC expressly mentions works of art and literature (Art. 2 I BC), which include expressions in the fields of art, science and literature as subject matter of protection regardless their mode of expression16. These categories are to be interpreted extensively in order to grant protection to a wide array of works17. The problem, that digitized works are not necessarily fixed to a corporeal medium (e.g. satellite transmissions) does not lead to a denial of protection, as the mode of expression is irrelevant(Art. 2 I BC). Finally, a digitalized literary work still is a literary work and is protected as such18. Thus it can be stated, that digitized works are just a different mode of expression and are entitled to protection just as any other work.

b) Multimedia works

In contrast to the traditional works protected expressly by the BC, multimedia works offer the possibility to combine several of those works in one19. Unfortunately the BC does not offer the possibility to protect a Multimedia work as such20. Nevertheless, the single parts are protected in their corresponding categories21.

c) Conclusion

The Berne Convention protects the traditional forms of expression. This protection extends to digitalized works but does not include a special right for multimedia works, which have to rely on the protection of their single parts.

2. The Universal Copyright Convention (UCC) - (1952)

This paper will not deal with this Convention, because it has virtually no signifcance anymore. TodayÂs only relevance of the UCC lies in the relationship to 19 (minor) States, who are party to the UCC but not to the BC22. Finally it does not apply to relationships among Berne Convention countries and as the US is a member to the Berne Convention since 1989 it can be left aside23.

3. GATT-TRIPS (1994)

The GATT-TRIPS (Treaty about Trade-related aspects of Intellectual Property) agreement is a relatively young source for copyright law. It came into existence as a special agreement according to Art. 20 BC24 when the industrialized world realized, that the BC was virtually unenforcable. TRIPS offered the possibility to enforce compliance with its provisions by the sanctions provided for by the World Trade Organisation (WTO)25. Since TRIPS does incorporate articles 1 - 21 BC (except Art. 6 bis BC), the basic subjects of protection are those protected by the BC (Art. 9 I TRIPS). Additionally TRIPS expressly offers protection for computer programs and compilations of data 26 .

Art. 10 I TRIPS determines that computer programs, whether in source or object code, are protected as literary works. This is not a new right, but a clearification of the protection granted already by the Berne Connvention27. Art. 10 II TRIPS introduces a sui generis right for databases, which protects compilations of data as such and in any form regardless the protectability of its content28, if only the selection or arrangement of the data constitutes an intellectual creation (Art. 10 II TRIPS). Other categories of works only have to be somehow expressed in order to obtain protection. Mere ideas are not protected (Art. 9 II TRIPS).

The digitalization of a work does not alter its claim for protection. A special right for multimedia works is not provided for.

4. WIPO Copyright Treaty (1996)

The youngest international treaty regarding copyright is the WIPO Copyright Treaty (WCT). It can be seen as a reaction from WIPO (World Intellectual Property Organisation) to GATT- TRIPS in order to reclaim competence in the field of intellectual property protection. Furthermore, the WCT derives itÂs importance from the fact, that not every member to this treaty already is a member of the WTO (e.g. China)29.

The WCT is, like TRIPS, a special agreement in the sense of Art. 20 BC30. It thus offers protection for basically the same works as the BC. Additionally, like in TRIPS, computer programs and compilations of data (databases) are protected. In the case of computer programs and databases, the subject-matter of protection slightly differs from that in TRIPS. Computer programs are not only protected in source or object code, but in any form (Art. 4 WCT). The terminology regarding compilations of data is not identical to that in TRIPS, as instead of "in machine readable or other form" the term "in any form" was used and instead of "shall be protected" the wording "are protected" emphasized the declatory nature of Art. 5 WCT31. Like in TRIPS, these compilations have to be intellectual creations. The only requirement for other categories of works is, that they have to be somehow expressed, as the WCT does not protect ideas as well32. In the case of digitalized or multimedia works, the same is true as for the Berne Convention.

A peculiarity of the WCT is, that the EU is an independet party to the treaty33.

5. EU-Directives

Realizing the growing need for an international intellectual property protection34 the EU started acting. Partly to fullfil its own obligations as a member to international treaties and partly to harmonize copyright laws throughout the Union.

a) Computer Programs Directive (CPD) - 91/250/EEC

This Directive aims at the protection of software. The definition of the subject-matter of protection is basically the same as in the WCT but additionally includes preparatory design material (Art. 1 I+II CPD). As this DirectiveÂs only peculiarity compared to the protection offered by the other laws and treaties is the decompilation right and this is of no importance as regards the purpose of this paper, this Directive will not be dealt with further.

b) Database Directive (DD) - 96/9/EC

The Database Directive creates a sui generis right for compilations of data, which means that protection is granted regardless the protectability of the contents of this database (Art. 3 DD)35. In compliance with TRIPS, a database has to be the authors own intellectual creation (Art. 3 I DD). To qualifiy for the sui generis right, a quantitatively and/or qualitatively substantial investment has to be made to obtain, verify or present the contents of the database (Art. 7 I DD). Only the sui generis right for databases will be subject of this paper, as the copyright in databases does not grant substantially different rights compared to those granted to any other category of works

c) Proposed Directive on Copyright and Related Rights in the Information Society - COM (1999) 250 final

This Directive is based on the principles of the two preceding Directives and must be seen as an addition to them36.

It reflects the provisions of the WIPO treaties and aims at the harmonisation of their provisions throughout Europe37. The subject-matter of protection therefore does not differ from those of the BC and the WCT.

6. German Legislation

a) General provisions

Under German law (Urheberrechtsgesetz), literary, artistic and scientific works are protected (§ 1 UrhG). § 2 I UrhG contains a non- exhaustive list38 of examples of works expressly including computer programs. As demanded by Art. 5 II BC, no formal requirements have to be met in order to obtain protection39. However, works have to be expressed somehow as ideas are not protected.

It is not sufficient to obtain protection, that a work is an authors own intellectual creation (§ 2 II UrhG). Additionally, the work must reach a certain hight of creativity40. This means, that it has to appear as something special, outstanding and uncommon41. A general rule to determine whether a work is protectable or not, can not be given as the variety of works is to great. Also, the court decisions in this field are far from unitary and thus unpredictable42. What can be said is, that for the eligibility of a works as protectable, the relevant category of works must be viewed43. Whenever a work only reaches a minimal degree of creative input, it can still rely on some protection, the so called "small change" (kleine M ü nze), which grants somewhat weaker rights44 in the case of reutilization.

§ 4 UrhG grants a sui generis right for databases, which protects the database regardless the protectability of its content45 whenever the database is an authors own intellectual creation (§ 4 II UrhG). In order to obtain the database rights of §§ 87a ff. UrhG, itÂs contents must be in a systematical or methodical order and individually accessible. Futhermore, their acquisition, verification or presentation must have required an qualitative or quantitative substantial investment (§ 87a I UrhG). The digitalization of a work does not hinder its protectability46.

As regards multimedia works the question must be discussed, whether they can be protected as such or if they have to rely on the protection of their single components.

b) Protection of multimedia works

When looking at the protectability of webpages, several possibilities have to be regarded.

i) Technical depiction (§ 2 I, No. 7 UrhG)

The first one is to protect a webpage as a techical depiction (§ 2 I, No. 7 UrhG)47. This requires an educational purpose of the work48.

ii) Expressionmode of a computer program (§§ 2 I, No. 1; 69a II, 1 UrhG)

Some people argue, that webpages can be protected as a mode of expression of the underlying computerprogram, as all steps, from digitalization of the work to perception by the enduser, are governed by computer programs49.

iii) Movie or movielike works (§ 2 I, No. 6 UrhG)

Occasionally the opinion can be found, that webpages should be classified as belonging to this category. This requires, that the actual design evokes the impression of moving images50.

iv) Protection as a Database

Finally the possibility is discussed, to protect webpages as databases (§ 4 UrhG) as the author of a webpage assembles various different kinds of works and information and presents the result as a structured, unitary work51.

v) Conclusion

To protect webpages as technical depictions is an unacceptable solution. The HTML-code of a page does usually not aim at the spreading of knownledge of how to create a webpage.

The protectability as a mode of expression of a computer program is to be rejected. § 69a UrhG does not protect the audiovisual outcome on the screen. Only the program itself and not the result of a program is protected52. This becomes clear if one keeps in mind, that the same result on screen can be obtained by different underlying programs.

The categorization of webpages as movies or movielike works does not really fit. Webpages do never create the impression of moving images, as the change of pictures is always evoked by the user. They thus have to be characterized as a sequence of still images. Even single animated sequences are not sufficient to qualify the whole webpage for a protection as a movie work.

To categorize webpages as databases seems to fit best. As not all works contained in a webpage are necessarily created by the author of the page, the relationship between the author of the webpage and those of the contained works can best be governed by the relevant rules for databases53. The main work of the webpage- author lying in the combination of the works in question.

Webpages, which for the one or other reason do not fit into the above mentioned categories do not have to renounce protection as § 2 UrhG protects all personal, intellectual creations and has to be interpreted widely54.

c) Conclusion

The potential subjects of protection under the UrhG do not differ from Germanys international obligations as a member to the treaties mentioned above. Additionally, an individual protection for multimedia works as such can be constructed55.

7. US Legislation (title 17 of the United States Code - USC)

In this legal system, copyright protection subsists in original works of authorship (17 USC 102 (a)), which contain "a spark of creativity"56.

Using the authorization of Art. 2 II BC, US Law provides, that protection is granted only if the work is fixed in a tangible form (17 USC 102 (a)). The criterium of tangible form is fullfilled, when the embodiment is sufficiently permanent or stable to permit it to be received, reproduced, or otherwise communicated for a more than transitory duration (17 USC 101). Digitalization does not hinder protectability.

Furthermore the five disqualifications have to be mentioned57. An affirmative finding of one of them will usually lead to a denial of protection by the court.

These are:

A7 Mere idea - the work is not the creative expression of an idea but just the idea, procedure, process, system, method of operation, principle or discovery itself (17 USC 102 (b)). A7 Merger - in addition to the underlying idea an original input into the expression is needed. This addition must not be necessarily incidental to the idea.

A7 Insufficient creativity.

A7 External factors - the work is dictated by external factors.

A7 Public domain - e.g. after termination of the copyright.

Multimedia works are not expressly mentioned, but every work which fulfills the above mentioned criteria is protectable. Database protection was introduced into US Law by the Collenction of Information Antipiracy Act (CIAA - 19.01.1999), which amended title 17 USC. A7 1402 CIAA provides, that all collections of information are protectable, if gathering, organization or maintenance requires a substantial amount of money or other resources.

8. Conclusion

The result of the above analysis is, that the traditional categories of works may well be extended to the new workforms evolving in the Internet. Copyright is, at least as regards the subject-matter of protection, fit for the Digital Age. Nevertheless it could be helpful to change the wording of some provision in a way, that they expressly include the new kinds of works in order to prevent uncertainty.

III. Persons entitled to Protection

Generally, the creator of a work is regarded as author and thus the beneficiary of protection58. Although there are vast differences in who is regarded as author between droit de auteur and copyright countries. The most extreme positions are formulated in Germany respectively the US. Whereas under German Law, the creator of a work is automatically and unchangeably regarded the author (§ 7 UrhG), US Law provides, that in the case of a work made for hire the employer is to be regarded as author59. For the purpose of this paper this matter does not need to be discussed in depth as the granted rights are the same regardless, who actually is entitled to enforce them and a discussion of this matter would blow the extend of this paper.

IV. Granted Rights

1. Economic Rights

a) Reproduction right
i) International Law

The most fundamental authorÂs right is the right to authorize reproductions60. It has itÂs origin in Art. 9 BC and is not specifically mentioned in the WCT. As the Diplomatic Conference adopted a statement which reiterates that Art. 9. BC continues to apply in the digital environment61, the central problem is to determine what constitutes a reproduction in the Internet. The two most extreme positions are, that either every manifestation of a work constitutes a reproduction62, or that only copies which last a certain time fall within the scope of this provision.

This determination is of particular importance regarding the Internet, as the most common action performed in the Internet is browsing. In order to display the requested information, the browser63 automatically makes a copy of the requested information onto the computers RAM (Random Access Memory)64. Thus the common usage of the Internet potentially infringes copyright.

International law does not regulate, what actually constitutes a reproduction65, but Mr. Ficsor66 interpreted Art. 9 BC as including the right to authorize reproductions which are of only ephemeral nature67.

ii) European and German Law

Art. 2 of the proposed EU Directive68 determines that temporary reproductions by any means and in any form are reproductions. Thus even temporary copies of works to a computer s RAM during browsing fall within the scope of the reproduction right69. In Germany, where the reproduction right is laid down in § 16 UrhG, digitalizations and temporary copies are to be regarded as reproductions70. An exemption is not yet implemented.

As parts of a work are protected in Germany as well, the question must be raised, under which circumstances protection is provided. The protection of § 16 UrhG extends to parts of a work, which themselves fullfil the requirements complete works have to fullfil71.

iii) US Law

The US reproduction right is granted in 17 USC 106 (1). US law defines, that copies are material objects, in which a work is fixed in any method and from which it can be reproduced, percieved, or otherwise communicated either directly or with the aid of a machine or device. Although not expressly mentioned in the law, the US view is, that even ephemeral copies resulting from browsing are regarded as reproductions72.

iv) Conclusion

It is internationally agreed upon, that the reproduction right is to be interpreted very broadly. Every duplication of a work in any manner must be authorized by the author. Theoretically, the reproduction right can cope with the challenges of the Internet well - the problem lies in enforcement.

b) Communication to the public
i) International Law

The right of the author to present his work to the public was introduced into international copyright by Art. 8 WCT73.

Following an EU74 proposal the Diplomatic Conference preparing the WCT decided, that online rights should be part of the communication right of Art. 8 WCT75.

As regards the Internet the only dispute, which has to be solved is, whether the presentation of a work on a homepage, thus making it accessible to millions of people, already constitutes a communication to the public even if nobody has ever visited this particular webpage yet. In short: is active publication the requirement or passive accessability? Art. 8 WCT has to bee interpreted in a way, that communication to the public takes place when the work is potentially accessible by the public even is the public has not yet accessed the work or if the work can only be accessed by one person at a time76. In contrast to the BC, the WCT widened the scope of the communication right to all kinds of works, whereas the BC granted this right only for specified categories77.

ii) European and German Law

Art. 3 I of the proposed EU Directive78 envisages the implementation of Art. 8 WCT79. Both articles almost completely correspond. As the WCT, the proposed EU-Directive leaves the definition of what constitutes the public up to the Member States80 ; but the Commission stated, that public may include individual members of the public but not merely private communication81. According to my opinion, the distinction must be drawn by determining the accessability: works which can be accessed by everyone are in public - those which are directed to a certain identifiable range of persons are privately communicated.

German law provides in Art. 15 II UrhG for a communication right. Although it is subject of discussion if the making available of a work in the Internet falls within § 15 II UrhG - one other proposal is the broadcasting right (§ 20 UrhG) - the corresponding solution in the WCT weights in favour of § 15 II UrhG82.

Due to the proposed EU-Directive, the express inclusion of individual accessability has to be added to the enumeration in this provision83 if the proposed Directive is adopted.

iii) US Law

The US Copyright Act does not expressly mention a communication right, but provides in 17 USC 106 (5) for a public display right. Since the US has to implement the minimum protection of the WCT, the public has to be defined like above. As the display right extends to all relevant categories of works and the publication of a work in the Internet can very well be described as displaying it is not necessary to introduce an extra communication to the public right. Every other transmission of works in the digital environment falls within the scope of the distribution right (17 USC 106 (3))84.

iv) Conclusion

The communication right ensures, that the author can control the actual publication of his work. The extension to the right to authorize individual, online access improves protection in the Digital Age and ensures control of the author over his work in the future.

c) Sui generis right for Databases
i) International Law

Art. 10 II TRIPS and the Art. 5 WCT only demand the introduction of a sui generis right for databases, but do not state which rights are to be granted.

ii) European and German Law

The EU Database Directive grants a sui generis right for databases, which gives the maker of the database the right to prevent extraction and/or reutilisation of the whole or of a substantial part of the contents of a database (Art. 7 DD). In contrast to what was said above, this right is not granted to the creator of the database, but to the manufacturer to ensure fair remuneration for his investments85.

The right is already infringed if only a temporary copy (e.g. into a computerÂs RAM) is made86.

The implementation into German law has taken place in §§ 87a ff. UrhG. The sui generis right is granted to the holder of the economic risk (§ 87 a II UrhG), whoÂs right to prevent extraction or reutilisation was implemented in § 87b UrhG.

The breach with the droit de auteur system in this case is evident, as not the rightholder as a person is protected, but the database as immaterial property87. Although § 87b I UrhG does not mention an online transmission right as Art. 7 II b DD does, an interpretation which complies with the Directive must result in the granting of such a right88.

iii) US Law

Like the EU Directive, US Law grants the sui generis right to the one who holds the economic risk. This can be seen by the extension of the right to the successor in interest of the originally entitled person.

§ 1402 CIAA provides, that extractions or uses in commerce of all or a substantial part (measured quantitatively or qualitatifely) of the database are infringing, if they cause harm to the actual or potential market of the rightholder. The reference to the relevant market stresses the purely economic character of the sui generis right.

d) Distribution right

The distribution right must be distinguished from the reproduction right, as it entitles the author to actually control the putting on the market of the first copy of his work89. Neither the BC nor TRIPS contain any provisions regarding the distribution right, except for cinematographic works90.

The EU-Commission pointed out, that the exhaustion principle is not applicable in the online-context - but as the distribution right is the classical subject of the principle of exhaustion it must be argued, that the Commision does not think that this right is applicable in the Internet91.

In Germany § 17 UrhG only regulates the distribution of corporeal works. The distribution right is not applicable to Internet published works there92. For the importance of the distribution right in US Law see above: b) iii.

e) Adaptation right

The author has the right to authorize the transformation of his work into a different type of presentation (e.g. making a film script from a novel)93. This right does not throw up any special problems in the digital environment and can therefore be left aside.

2. Moral rights

The moral rights are founded on Art. 6 bis BC. As they are no more endangered by the Internet as they are by any other medium, these rights will not be dealt with any further.

The claim of some authors that the US does not comply with Art. 6 bis BC, because it does not grant moral rights for all categories of works expressly but by using their existing provisions (e.g. fair dealing), does not have particular influence as regards the Internet as well.

3. Conclusion

The granted rights, if relevant as regards the Internet, are able to handle the problems evolving with the Digital Age.

V. Limitation of Rights

1. System of national copyright laws

When scrutinizing the limitations of rights the first problem, which often is forgotten is, that copyright protection generally ends at the boundary of the country where protection is sought94. This problem is eased when looking at countries which are member to an international copyright convention, but still many countries are not. These countries however do have access to the Internet. Thus there are certain black areas on the map of copyright, where no bordercrossing protection is granted. There is no way yet of preventing worldwide breach of copyright, when the source is situated in one of those countries95.

2. International Law - the "Three-step-test"

All limitations to the reproduction right have to fullfil the three-step-test laid down in Art. 9 II BC in order to be in compliance with this convention. It provides, that limitations may take place in (a) certain special cases, which do not (b) conflict with a normal exploitation of the work and do not (c) unreasonably prejudice the legitimate interests of the author 96 . This test was adopted in by Art. 13 TRIPS and Art. 10 I WCT and is applicable to Internet published works97.

3. EU Law

Art. 5 of the proposed Directive determines the possible limitations in an exhaustive list98. Art. 5 I contains the only obligatory exeption, which member states have to introduce99: transcient and incidental reproductions, which are an integral and essential part of a technical progress, whose sole purpose is to enable use to be made of a work and which does not have any independet economic significance shall be exempted from the reproduction right. This takes browsing out of the scope of the reproduction right.

Art. 5 II contains three limitations which the member states may introduce100: (1) reprograhic reproductions on paper or similar media (Art. 5 II a) and (2) reproductions of music and video for strictly private pruposes (Art. 5 II b) are allowed provided that the rightholder recieves fair compensation; (3) public libraries are exempted from certain reproduction prohibitions (Art. 5 II c).

Art. 5 III restricts the reproduction and the communication right for the following purposes: (1) for teaching or scientific research (Art. 5 III a), (2) for the benefit of disabled people (Art. 5 III b), (3) the reporting of current events (Art. 5 III c), (4) for criticism or review, if the work has been lawfully published (Art. 5 III d) and (e) public security or administrative purposes (Art. 5 III e). According to Art. 5 IV, all exeptions have to fullfil the requirements of the three-step-test.

4. German Law

The UrhG provides for several limitations in a stiff catalogue.

§ 45 UrhG grants an exeption for legal proceeding and public security. Religious or educational uses are not infringing, provided, that a fair compensation is paid to the rightholder (§§ 46, 47 UrhG).

Reproductions, distributions or communications to the public are not infringing if done for the purpose news reporting or citing the work in question (§§ 48-51 UrhG). The citation has to take place in an itself protectable work and to no greater extend as necessary for the relevant purpose101.

§ 52 UrhG contains the most problematic limitation. The communication to the public of a work is not infringing if done for non- commercial purposes, provided that the rightholder is compensated. The problem is, that the rightholder recieves this compensation only once, whereas his work can be copied endlessly (e.g. if published on a website). Although § 52 III UrhG exepts broadcasting from this provision, online publications do not yet fall within this exeption102.

§ 53 I UrhG contains the right of a private person to make single copies of a work for own and strictly private purposes (where "single" means up to seven103 ) this private copying right does not extend to communications to the public of the works in question.

Finally, when a work constitutes an insignificant addition to the actual subject of reproduction or publication, the violation if the rights regarding this work is not infringing (§ 57 UrhG).

5. US Law

In contrast to German law, US law does not rely on a stiff catalogue of limitations, but formulates a general fair use concept (17 USC 107). This section provides, that a use for purposes "such as" criticism, comment, teaching, scholarship and reseach are not infringing if the factors taken into account "include" such matters as whether the use is of a commercial nature or for nonprofit educational purposes, the amount and substantiality of the portion used in relation to the whole work, and the effect of the use upon the market or the value of the copyrighted work. This scrutiny very much resembles the Berne three-step-test and is in compliance with the BC.

Furthermore section 17 USC 108 provides a reproduction right for public and research libraries and archives.

6. Sui generis right for Databases

a) EU and German Law

A database granted protection according to the EU Database Directive is not protected from insubstantial extraction, which a legitimate user is allowed to make and re-utilize104. German law provides, that even substantial reproductions are allowed (1) for private purposes, if the single elements of the database are not electronically accessible, (2) for non- commercial scientific purposes or (3) for non- commercial educational purposes (§ 87c I UrhG). Further exeptions are made for legal proceedings or public security reasons ($ 87 c II UrhG). A reproduction necessary for the use of a database, which is published with consent of it s creator is also not infringing (§ 55a UrhG).

b) US Law

Apart from the fair use doctrine, which is not affected (§ 1405 c CIAA), the sui generis right for databases is limited by § 1403 CIAA. This provisions allows extractions for educational, scientific, research and additional resonable uses as long as they are for non-profit purposes, provided that the use does not directly harm the actual market of the database. The additional reasonable uses provision in § 1403 a (2) (A) CIAA is in fact a reformulation of the fair use doctrine.

Unsystematic extraction of individual items of information is not infringing (§ 1403 b).

7. Conclusion

The limitations of the granted rights pose a serious threat to works in the Internet. In contrast to the granted rights, they can not simply be declared applicable to Internet use, as the extent (e.g. of private reproduction) widenes immensely in the digital environment. Especially in Germany, due to the fixed catalogue of exeptions, an update of the limitations of rights is urgently needed.

VI. Term of Protection

The general term of protection for a work is the lifetime of its author and 50 years after his death (Art. 7 BC). The EU exceeds itÂs obligations and grants a term of 70 years after the death of the author105 (Art. 1 EU Term Directive106 ) In compliance with the EU Term Directive protection in Germany lasts for 70 years after the death of the author (§ 64 UrhG). The US extended their original 50 year term of protection to match the European term by the "Sonny Bono Copyright Term Extension Act"107.

As regards the sui generis right for databases, the EU Database Directive provides a term of protection of 15 years108 this term has been adopted by § 87d UrhG in Germany.

VII. Critical evaluation of granted rights

The most extensive rights do not have any value if they are not enforcable or are not observed.

1. Reproduction right

It must be seen if this right can be enforced or is observed in reality. As browsing is an essential form of Internet use, it is probably not realistic to forbid ephemeral copies. The exemption from the reproduction right introduced by proposed EU Information Society Directive has the possibility to handle the browsing-problem well. The question remains, if it will ever come into effect.

Nevertheless I would argue, that even under the existing laws incidental copying is exempted from the reproduction right, if the work is put in the Internet with consent of the author. In such a case the author knows of the necessity of ephemeral reproductions. An express authorization is not necessary109.

More than temporary copies of course are infringing.

Although we do have the judicial means to fight unauthorized reproduction, this right is, in my opinion, not enforcable unless the privat sphere is abolished and every Internet user is controlled. Hopefully, this is a price nobody really wants to pay.

Especially German law has to solve the problems caused by itÂs limitations catalogue, which is right now not able to cope with the changed possibilities of reproduction and communication to the public offered to everybody with a computer connected to the Internet.

2. Communication to the public

The communication right is needed to ensure, that the author of a work has the possibility to control the actual publication of his work. As with all rights, the only problem is enforcement. Luckily, it is far more easier to track down an infringer of this right in contrast to the virtually endless number of possible infringers in case of the reproduction right.

3. Sui generis right for databases

This right is fit for the Digital Age, as is constructed to meet the requirements of this new environment. Even the limitations to this right take note of the special circumstances in the Internet.

D. Conclusion

I want to contrast my conclusion to that drawn by Barlow in his often cited "Selling wine without bottles".

The problem is not, that the granted rights are not able to cope with the possibilities offered by the Internet.

The problem is, that breaking copyright laws has become socially acceptable110.

Barlow concludes, that copyright should be abolished and be replaced by effective technical means for rights enforcement. In contrast to Barlow, who thinks, that the protections we will develop will rely far more on ethics and technology than on law111, I prefer copyright as a basis for rights enforcement. The fact, that laws are not obeyed must not lead to the conclusion, that they should be abolished. I think, that authors rights need a foundation in copyright law and that cryptography should be protected as a means to assist the enforcement of rights. New rights to prevent circumvention of technical protection or removal of rights management information are promising112. The protection of encryption software enabling officials to prosecute hackers may turn out to be a solution as the common user is usually not able to crack encrypted software without the help of programs created by those hackers. I therefore in so far agree with Barlow as cryptography is the solution to todays copyright enforcement problems, but in contrast to him I prefer copyright as a legal basis for claiming rights and not the romantic idea of floating information.


1 Sterling, p. 6.

2 The historic law texts can be found in Sterling, pp. 993ff.

3 Stewart, p. 13.

4 Stewart, p. 14.

5 The first privilege was granted to Johannes of Speyer by the State Councillors of Venice.

6 WIPO, p. 23.

7 Sterling, p. 11.

8 WIPO, p. 24f.

9 Sterling, p. 13f.

10 Drexl, GRUR Int. 1999, 3.

11 Freitag, p. 294.

12 Fraser, JCIL 1997, 759 (762).

13 WIPO, p. 153.

14 Tritton, p. 189.

15 Probably everybody knows the ©, which is a product of US CopyrightÂs formal requirements and which shows, that a work is registered.

16 WIPO, p. 153; Tritton, p. 187.

17 Schricker, p. 26.

18 Klett, p. 42.

19 Schricker, p. 32; Zscherpe, MMR 1998, 404.

20 Dixon/Hansen, EIPR 1996, 604 (606).

21 Sterling, p. 211.

22 Harke, p. 21.

23 Tritton, p. 192.

24 Fraser, JCIL 1997, 759 (772).

25 Fraser, JCIL 1997, 759 (766).

26 Sterling, p. 543.

27 Computer programs already fell into the scope of Art. 2 BC; Lewinski, GRUR Int. 1997, 667 (677).

28 Lewinski, GRUR Int. 1997, 667 (677).

29 Fraser, JCIL 1997, 759 (773).

30 Mason, EIPR 1997, 636 (637).

31 Reinbothe, EIPR 1997, 171 (174).

32 Sterling, p. 192.

33 Lewinski, GRUR Int. 1997, 667 (680).

34 See recital No. 4 CPD.

35 Kaye, EIPR 1995, 169; Vogel, ZUM 1997, 592 (596); Sterling, p. 223.

36 Recital 8 bis Proposed Information Society Directive.

37 Dietz, ZUM 1998, 438 (439); Hart, EIPR 1998, 169; Lewinski, EIPR 1998, 135.

38 Klett, 27; Fromm/Nordemann - Vinck § 2, No. 1.

39 Spitz, 175.

40 Schricker - Loewenheim § 2, No. 9.

41 Schricker - Loewenheim § 2, No. 18.

42 Lehr/G ö ckmann, p. 3.

43 Freitag, p. 293.

44 Sterling, p. 260.

45 Freitag, p. 293f.; Nordemann, CR 1996, 645 (647).

46 Klett, p. 42; Saacke, p. 25.

47 Klett, p. 43.

48 Cichon, ZUM 1998, 897 (901).

49 Zscherpe, MMR 1998, 404 (405).

50 Saacke, pp. 28f.; Schricker - Loewenheim § 2, No. 181.

51 Zscherpe, MMR 1998, 404 (405).

52 Saacke, p. 27.

53 Saacke, p. 30.

54 Schricker - Loewenheim § 2, No. 4.

55 Wiebe/Funkat, MMR 1998, 69 (75).

56 MacQueen, p.73 - This term replaced the "sweat of the brow"-test, which would have granted copyright protection to every work which required some effort - even if it lacked the simplest creativity..

57 Sterling, pp. 251ff.

58 WIPO, p. 164.

59 Sterling, p. 155.

60 WIPO, p. 155; Follow-up to the Green Paper on Copyright and related rights in the Information Society, p.10.

61 Reinbothe, EIPR 1997, 171 (172).

62 Sterling, p. 307.

63 Software needed for the access of Webpages (e.g. Netscape or Internet Explorer).

64 Fraser, JCIL 1997, 759 (775).

65 Sterling, p. 307; Lewinski, GRUR Int. 1997, 667 (673).

66 Then Assistant Director General of WIPO.

67 Fraser, JCIL 1997, 759 (777).

68 Proposed Directive on Copyright and Related Rights in the Information Society - COM (1999) 250 final.

69 Dietz, ZUM 1998, 438 (443).

70 Wenzel, pp. 81f.

71 Schricker - Loewenheim § 16, No. 14.

72 MacQueen, p. 80; Fraser, JCIL 1997, 759 (777); Nordemann, CR 1996, 645 (648).

73 Fraser, JCIL 1997, 759 (773).

74 For an overview of the EU-intern discussion see: Follow-up to the Green Paper on Copyright and related rights in the Information Society, pp.12ff.

75 Ficsor, p. 33; Lewinski, GRUR Int. 1997, 667 (675).

76 Weatherall, EIPR 1999, 342 (348).

77 Art. 8 WCT in contrast to: Art. 11 I 2; 11 bis I 1+2; 11 ter I 2; 14 I 2; 14 bis I BC - Lewinski, GRUR Int. 1997, 667 (675).

78 Proposed Directive on Copyright and Related Rights in the Information Society - COM (1999) 250 final.

79 Lewinski, EIPR 1998, 135 (136).

80 Reinbothe, ZUM 1998, 429 (434); Schricker - v. Ungern-Sternberg § 15, Rn. 53.

81 Weatherall, EIPR 1999, 342 (349).

82 Freytag, http://www.juramail.de/aufsatz/freytag/index.html; Schricker, p. 153.

83 Dietz, ZUM 1998, 438 (445).

84 Schricker, 124; Mahon, Rutgers Computer & Technology Law Journal 1996, 233 (239).

85 Vandoren, p. 157 - for Germany: Schricker - Vogel § 87a, No. 28.

86 MacQueen, p. 80.

87 Vogel, ZUM 1997, 592 (595).

88 Leupold, CR 1998, 234 (237).

89 Sterling, p. 308.

90 Lewinski, GRUR Int. 1997, 667 (673).

91 Leupold, CR 1998, 234 (238).

92 Wenzel, p. 83; Schricker - Loewenheim § 17, No. 48.

93 Sterling, p. 308.

94 WIPO, pp. 164f.

95 Dixon/Hansen, EIPR 1996, 605 (607).

96 Follow-up to the Green Paper on Copyright and related rights in the Information Society, p.9.

97 Lewinski, GRUR Int. 1997, 667 (676); Reinbothe, EIPR 1997, 171 (173).

98 Dietz, ZUM 1998, 438 (446); Reinbothe, ZUM 1998, 429 (434).

99 Reinbothe, ZUM 1998, 429 (434).

100 Reinbothe, ZUM 1998, 429 (435).

101 Freytag, http://www.juramail.de/aufsatz/freytag/index.html.

102 Schricker, p. 162.

103 Hubmann, p. 159.

104 Vandoren, p. 157.

105 The term was prolonged, because originally under the BC protection should be granted for the author and the two following generations. Due to the fact that life expectancy grew longer in the EU this original goal could not be reached with an additional 50 years. - Tritton, p. 197.

106 Council Directive 93/98/EEC of 29.10.1993.

107 Band, EIPR 1999, 92 (94).

108 Vandoren, p. 157.

109 This is already the case in Germany - Wenzel, p. 82.

110 Barlow, Wired 2.03[1994] - recently confirmed by Däubler-Gmelin, ZUM 1999, 769.

111 Barlow, Wired 2.03[1994].

112 The basis is laid in articles 11, 12 WCT.


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Title: Copyright Law & the protection of Internet-published works