United States of America
Germany
Copyright and Related Rights
1. Please explain whether and how German law provides protection for works, phonograms and performances from other WTO Members, and whether and how it does so on the basis of national treatment, as required by TRIPS Article 3 (generally, with respect to all copyrights and neighbouring rights) and Article 9.1 (incorporating Berne Article 5(1)). In particular, please explain how national treatment is afforded with respect to the distribution of levies for private copying under the relevant provisions of the German Copyright Law.
I. First sentence National treatment in favour of WTO Members operates as follows: (a)Authors (excluding phonogram producers and performing artists who both are, as such, neighbouring rightholders under German law). 1.Section 120 Copyright Act provides protection for works of authors of German nationality irrespective of the place of publication and irrespective of whether publication has at all occurred. 2.Section 121, paragraph 1 provides protection for works first or simultaneously published in Germany, irrespective of the nationality of the author. 3.Section 121, paragraph 4 provides protection for works of foreign authors to the extent provided by international agreements to which Germany is a Contracting Party. Such agreements are the Berne Convention as well as the TRIPS Agreement. The national treatment obligation under Articles 3 and 9, paragraph 1 TRIPS is thus materially incorporated in the Copyright Act. Consequently, the extent of the protection of foreign authors under this section depends exclusively on the interpretation of these treaty provisions, because the protection of German authors under German law - see section 120 above - is not limited by any further criterion of eligibility. The exceptions from national treatment provided for in the Berne Convention and accepted under Article 3 TRIPS are also materially incorporated in German copyright law by section 121, paragraph 4. (b)Phonogram producers 1.Section 126, paragraph 1 provides that German nationals and companies with German headquarters benefit from the protection of phonogram producers irrespective of the place of publication of their phonograms and irrespective of whether publication has at all occurred. 2.Section 126, paragraph 2 provides that protection is granted for phonograms first or simultaneously published in Germany irrespective of the nationality of the producer or, if the producer is a company, of the location of its headquarters. 3.Section 126, paragraph 3 provides that foreign citizens and companies having their headquarters outside Germany benefit from the protection afforded to phonogram producers to the extent provided in international agreements to which Germany is a contracting party. TRIPS is such an agreement. The national treatment obligations under Article 3 TRIPS, including the exceptions provided for in the Rome Convention, are thus materially incorporated in the German Copyright Act. Consequently, the extent of the protection of foreign producers depends exclusively on the interpretation of Article 3 TRIPS because the protection of German producers under section 126, paragraph 1 is not subject to any further criteria of eligibility. As far as the Rome Convention is concerned, Germany has notified to WTO that it does not apply the criterion of fixation. As German copyright law does not acknowledge phonogram producers as authors, Article 9, paragraph 1 TRIPS cannot be invoked in favour of them. (c)Performing artists 1.Section 125, paragraph 1 grants protection to German performing artists irrespective of the place of the performance and irrespective of the place of publication or the fixation of their performance. 2.Performing artists are granted certain specific exclusive rights either unconditionally or under certain conditions, according to section 125, paragraphs 2 4 and 6. 3.Section 125, paragraph 5 provides in addition, that foreign performing artists are granted protection to the extent provided for in international agreements to which Germany is a contracting party. TRIPS is such an agreement. The national treatment obligation under Article 3 TRIPS is thus materially incorporated in the German Copyright Act. Consequently, the extent of the protection of foreign performing artists depends exclusively on the interpretation of Article 3 TRIPS because the protection of German performing artists under section 125, paragraph 1 (above) is not subject to any further criteria of eligibility. II.Second sentence - national treatment with respect to the distribution of levies for private copying The statutory remuneration right for private copying under section 54 of the Copyright Act is granted, on the basis of national treatment, only to authors from WTO Members. Performing artists and phonogram producers from WTO Members do not benefit, as such, from the German private copying levy scheme. Consequently, the following explanations deal only with the remuneration right of authors. It has long been recognized in German legal practice that Berne Union Authors enjoy the statutory remuneration right for private copying under section 54 of the Copyright Act. Consequently, the German government considers that, as from 1996, this legal practice will extend to authors from WTO Members. As to the operation of the remuneration right the following explanations may be useful. The remuneration right is subject to compulsory collective administration, see section 54 h, paragraph 1. This means that the levy is collected jointly by the collecting societies representing the various groups of rightholders. It means further that authors must be represented by a collecting society in order to be able to claim participation in the distribution of the money received which the collecting society operates according to the distribution scheme that it has autonomously established and whose guidelines form part of its statute (section 7 of the Copyright Administration Act). Section 6 of the Copyright Administration Act obliges collecting societies to represent rightholders of German or other EU nationality who so claim. According to the predominant legal opinion of the German copyright community, this legal obligation operates also in favour of those other foreign rightholders who benefit from national treatment in respect of rights that are subject to compulsory collective administration. On the distribution of the total income from the levy for private copying, various agreements have been in force among the participating collecting societies. Agreements have also been concluded with certain foreign rightholders' organizations on their share in the distribution. The legality of the distribution practice operated by the collecting societies is subject to supervision by the German Patent Office as the state supervisory authority.