Sat, Aug. 18, 2007

New Rules for Quotes and Samples

CC - Washington. The recent amendments to the German copyright statute which were passed by the diet in Berlin in July 2007, Second Statute to Regulate Copyrights in the Information Society, affect what is known in American law as fair use.

The German copyright act, Urhebergesetz, BGBl. 1965 I, 1273, offers no direct equivalent to the American doctrine, but the underlying concept of exceptions to the exclusive right of the owner of a work is the same: Others may cite, sample, or comment on, the work, or use it for teaching and research.

The exceptions in §§ 44a et seq. had been hotly debated during the drafting of the bill. The most important amendment changes § 51 with its rules governing quotes and samples:
Reproduction, dissemination and public performance are authorized to an extent determined by the purpose if of a published work are authorized for the purpose of quotation, provided that such use is justified in its scope by the special purpose. Such permission applies in particular when:

1. Individual works are being incorporated, after their release publication, into an independent scientific work for the description of its content;

2. Passages of a work are being quoted, after its publication, in an independent literary work;

3. Individual segments of a published musical work are being quoted in an independent musical work. [Translation by author.]

The rationale for this change is that precedent had broadened the scope of the term literary work and further expansion was deemed advisable. The change gives statutory support to the Supreme Court's construction that movies qualify as literary works.

The revisions in §51 operate as a general clause which extends to passages from multimedia works. However, the legislator does not intend to broaden the exceptions of §51; rather, the intent is to clarify and adapt the law to newer technologies and to close gaps existing under the old law. Unresolved issues remain, as the legislative history reveals.

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