United States of America
Germany
Copyright and Related Rights
4. Please explain whether and how Germany provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1, 14.6 and 70.2, each of which incorporate by reference or rely upon Berne Article 18. Please give the date back to which such protection extends with respect to each category of subject matter.
I.Principle of retroactive protection (a)Works The way that authors from WTO Members are protected has been explained in answer to question 1, part I, a). The obligation to provide full retroactive protection of their works (TRIPS Article 9, paragraph 1) in conjunction with Berne Convention Article 18, paragraph 1, is directly applicable in German law. It may be of interest here that Article 18, paragraph 1 of the Berne Convention has been operated in the sense of full retroactive protection in Germany for a long time in favour of new Berne Union members, including the United States of America. On the basis of the "life plus 70 years" rule in the German Copyright Act, Article 7, paragraph 8 of the Berne Convention and on the basis that the substantive obligations of the TRIPS Agreement became effective on 1 January 1996, retroactive protection extends to works of authors who did not die before 1926, unless the country of origin provides for a shorter term in which case that term is not exceeded. As a minimum, the life plus 50 years rule of Article 7, paragraph 1 of the Berne Convention applies. (However, the comparison of the terms of protection allowed under Article 7, paragraph 8 of the Berne Convention is excluded in relation to the United States of America by virtue of a bilateral Agreement of 1892.) (b)Phonograms and performances The extension of the protection of the Copyright Act to phonogram producers and performing artists from WTO Members has been explained in the answer to question 1, part I. b) and c). The obligation to provide full retroactive protection for theses rightholders (TRIPS Article 14, paragraph 6, second sentence, in conjunction with Berne Convention Article 18, paragraph 1) is directly applicable in German law as well. On the basis of TRIPS Article 14, paragraph 5, first sentence, and on the basis that the substantive obligations of TRIPS became effective on 1 January 1996, the retroactive protection extends to fixations that were made or performances that took place not earlier than in 1945. II.Transitional rules No specific transitional rules have been adopted as to the copyright provisions of TRIPS. However, the transitional rules recently adopted in the course of the implementation of various EEC directives apply mutatis mutandis, in the following way: (a)Where protection is established retroactively acts of exploitation that were commenced prior to 1 January 1996, may be continued within the initially intended scope. However, rightholders shall be entitled to equitable remuneration for this continued exploitation (see section 137f, subsection 3). (b)The exclusive rental right of authors of computer programmes shall not extend to those copies of programmes that were acquired by the rental operator for the purpose of rental before 1 January 1996 (see section 137d). (c)The exclusive rental right of authors, phonogram producers and performing artists shall not extend to those copies of phonograms which were acquired or made available to the rental operator for the purpose of rental before 1 January 1996 (see section 137e, sub-section 3).