Design and Copyright

European Community Design

The Community Designs Regulation (EC) No 6/2002 of the European Council of 12 December 2001 provides a system of protection for unregistered and registered designs. The system is a uniform system of protection for all member states of the European Community.

Европейское сообщество дизайн

Проекты сообщества (ЕС) № 6 / 2002 от Европейского совета от 12 декабря 2001 года предусматривает систему защиты незарегистрированные и зарегистрированные замыслов. Система единой системы защиты для всех государствах - членах Европейского сообщества.

German Copyright Law

Press Release of the German Ministry of Justice, Berlin:

German Bundestag and Bundesrat adopted copyright law reform

On 5 July 2007 the German Bundestag passed the Second Act Governing Copyright in the Information Society. The Act constitutes the so-called “Second Basket” of copyright law reform. This draft bill was approved on 21 September 2007 by the German Bundesrat and shall enter into force on 1 January 2008.
Building upon the first reform enacted in 2003, the Second Basket will further adapt German copyright law to the “digital age” and new technological developments. The Act intends an appropriate balance between copyright holders’ interests in the safeguarding and exploitation of their intellectual property and the interests of the equipment industry, consumers and science in using the works of right holders.

Private copying of non-copy-protected material in any form will continue to be permitted. However, the new law contains a clarification: Up to now, it has been prohibited to copy materials that are produced in a manifestly unlawful manner. This prohibition will now be explicitly extended to material that is unlawfully offered on the Internet for purposes of downloading. In this way, the law will more clearly cover the use of illegal file-sharing networks. Thus the following will apply in the future: if it is obvious to the user of a peer-to-peer file-sharing network that a particular film or music recording is being offered unlawfully on the Internet – for example, because it is clear that no private Internet user owns the rights to offer a current feature film on the Internet – then the private copying of that material is not permitted.

The circumvention of copy protection will continue to be prohibited. This is binding under European Union law. Private copying is not permitted where copy protection measures have been implemented. Rights holders may protect their intellectual property themselves by employing such technological measures, and the legislator may not take this form of self-protection away from them. There is no “right of private copying” at the expense of rights holders. Neither may such a right be derived from basic rights: private copying does not create access to new information but rather merely duplicates information that is already known.

Copyright holders receive a lump-sum payment as compensation for permitted private copying. This lump-sum payment derives from a levy imposed on equipment and storage media and is distributed to copyright holders by collecting societies. Thus private copying and the levy system are inextricably linked, and this will continue to be the case. However, the Second Basket changes the method of determining the amount of remuneration. Up to now, remuneration rates have been stipulated by law in an annex to the Copyright Act. This list was last amended in 1985 and is out of date. This has led to numerous legal disputes – which continue to occupy the courts today – regarding the extent to which new equipment is subject to the levy system. Simply updating the remuneration rates by law would not adequately solve the problem; due to the rapid pace of technological developments in the digital age, the list would have to be revised within a brief period of time. Therefore, pursuant to the new law, remuneration rates will be negotiated between the involved parties themselves, i.e., between collecting societies and associations of equipment and storage media producers. The new law provides for expedited conciliation and decision-making procedures in the case of disputes. This market-oriented model is designed to facilitate a more flexible response to new technological developments and to allow agreements on remuneration to be reached more quickly. All types of equipment and storage media that are used to make permissible reproductions are subject to the levy system. Equipment in which a memory chip has been installed which could theoretically be used for making digital reproductions, but which is actually used for completely different functions, is not subject to the levy system.

The act establishes a binding framework by which the involved parties are to determine the amount of remuneration, namely: the amount is to be determined according to the actual extent to which the equipment and storage media in question are typically used for making permissible reproductions. This information is to be ascertained through empirical market studies. To the extent that private copies can no longer be made no lump-sum payments will be provided. Consumers will therefore not suffer a double burden. At the same time, the interests of equipment and storage media producers have been taken into account. While the originally proposed maximum levy amount (5% of the sales price of equipment) was eliminated during deliberations in the Bundestag, the economic interests of equipment producers were nonetheless taken sufficiently into consideration. It remains the case that the legitimate interests of producers may not be prejudiced unreasonably and that the amount of the levy must be economically appropriate in relation to the price level of the equipment or storage media.

The act allows public libraries, museums and archives to provide access to their collections via electronic reading stations. This will enable these institutions to keep up with developments in new media while simultaneously enhancing the media skills of the general public. Another innovation is that libraries will be permitted by law to make and send (e.g., via e-mail) copies of copyrighted works upon request. This will strengthen Germany’s position as a location for science and research. These new opportunities will be subject to certain limitations in order to safeguard the legitimate interests of publishers. For example, the number of reproductions of a particular work that may be shown simultaneously at reading stations will, in principle, be linked to the number of copies in a particular institution’s collection. This amount may be exceeded only during peak use periods. Libraries may send copies via e-mail only if the publisher of a particular work does not itself offer the work online in a clearly apparent manner and on reasonable terms. These restrictions are necessary to protect the intellectual property of publishers and authors, because legislators may not establish regulations that make it impossible for publishers to sell their products on the market.

Up to now, it was not possible to conclude contracts regarding the exploitation of copyrighted works through a form of use that did not even exist at the time the contract was concluded – for example, regarding use via the Internet before it existed. If users wished to exploit works in this new way, they had to put significant effort into locating the authors or their heirs and reaching an agreement regarding the exploitation of such works. Under the draft bill, copyright holders will also be able to dispose contractually of their rights with respect to future use. This is in the interest not only of users and consumers but also of the copyright holders themselves. Their works will remain available for future generations in newly developed media formats. Copyright holders will also be adequately protected by the new regulations. They will receive a separate, reasonable remuneration when their works are exploited through a new form of use. In addition, users must notify copyright holders prior to engaging in this new form of use. Thereafter, copyright holders have a period of three months in which they may revoke this right. A parallel provision enables already existing, archived works to be exploited through new forms of use. The opening of archives is in the public interest, because this ensures that works from the recent past may continue to be used in new media formats and thereby remain a part of cultural life.

The Act also takes in account the distinctive characteristics of film. Typically, a large number of persons are involved in making a film. For this reason, up to now the statutory presumption is that, in cases of doubt, the film producer acquires the right to exploit the film through all known forms of use. This presumption will now be extended to cover unknown forms of use. In contrast to other media formats, however, the authors of a film have no right of revocation. This provides producers with sufficient security in the acquisition of rights and ensures that German films will retain their international presence in the future.