United States of America
Copyright and Related Rights
3. Please explain whether and how Germany protects against both the direct and indirect reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in the context of subscription or interactive services.
The question refers to the exclusive reproduction right of phonogram producers under TRIPS Article 14, paragraph 2. This right is enshrined in section 85, paragraph 1 of the Copyright Act. The wording of this section does not specify whether the reproduction may be direct or indirect. Consequently, both ways of reproduction are covered by the exclusive right. In particular, reproduction on the basis of the broadcast of phonograms is covered by this right. This long standing German interpretive practice has been further secured by the necessity to interpret the German copyright law in line with Directive 92/100/EEC, whose Article 7, paragraph 1 obliges Member States to provide for phonogram producers the exclusive right to authorize or prohibit the direct or indirect reproduction of their phonograms. The provisions of the Copyright Act on the reproduction right do not specifically address digital transmission in the context of subscription or interactive services. Significant case law has not yet developed in this area. The extent to which acts of digital transmission or preparatory acts are covered by the reproduction right depends on a judgment on the technical circumstances of these acts. The Federal Government is currently engaged in the examination of the need for legislative clarifications of the notion of reproduction in the digital environment as well as for a new or widened exclusive right of phonogram producers covering acts of digital dissemination.