Berne Convention

In 1886, various European states as well as Tunisia concluded the Berne Convention for the Protection of Literary and Artistic Works. It has been changed several times and is therefore today called Revised Berne Convention (RBC). In the meantime, almost all states in the world have joined the federation; 1998 also the USA.

Protected works

Protected works are also “musical compositions with or without words” and the “translations, adaptations, arrangements of music and other alterations” of such works. 1). The protection applies “in all countries of the Union” “for the benefit of the author and his successors in title” 2) “for their works, whether published or not”.3)

Country of origin of the work

The country of origin of a work is considered to be the country in which the work was first published or (if published in one of the few non-member countries) to which the author belongs.4)

Principle of national protection

The decisive principle is called principle of national protection and reads:

Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.5)

It is immaterial whether the work is protected in the country of origin and whether the protection was formally claimed;6) thus, a copyright symbol or registering the work in any database is superfluous.

Protection period

The term of protection is “the life of the author and fifty years after his death”;7) and in anonymous and pseudonymous works fifty years after publication.8) However, the member countries may provide for longer deadlines.9) However, if it is granted longer in the country where protection is sought than in the country of origin, the deadline set in the country of origin will apply.10)

The deadline is always December 31 of the calendar year in which the protection period ends.

Utilization and use rights

The authors enjoy the exclusive right during the term of protection to approve

  • translations
  • reproductions (including recordings on image or sound carriers)
  • public performances and transmissions
  • public renderings
  • adaptations, arrangements and reworks.11)

But protection does not end here:

If the music work has been recorded, sound record rights arise; if it was performed, artist rights arise. This must be taken into account in the exploitation. However, the rights are not bundled to obtain from a single hand; rather, they lie either in the authors and authorized users themselves, in record producers, producers, publishers, licensing agents or copyright collectives. In addition, each rightholder may freely dispose of its various exploitation rights, depending on the type of use, and grant them to one or more third parties, individually and confinedly, non-exclusively or exclusively for selected territories.12)
Citation and "fair practice"

Citations may be made from publicly accessible works, “provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose”.13)

This provision, which has also been incorporated into EU law, 14) gives space to the right of “fair use” of works that has developed particularly in the U.S.A.

Three-step test

The RBC allows its member states, even in actually protected works,

to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.15)

This is called Three-step test, because it has to be checked whether these three criteria are met:

  1. certain special cases
  2. no impairment of the “normal exploitation”
  3. no unreasonable violation of the interests of the author

In particular, this “test” is intended to prevent an uncontrolled application of the fair use principle.

TRIPS and WIPO

The minimum requirements of the RBC have been included in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which was introduced in 1994 to the General Agreement on Tariffs and Trade (GATT). Thus, it is today one of the foundations of the World Trade Organization (WTO).

For its part, the United Nations in 1974 made the World Intellectual Property Organization (WIPO) the administrator of international intellectual property treaties; WIPO also manages the Berne Convention.

In short: Copyright is now largely standardized and in most countries directly or indirectly valid.

Important international protection periods

X + 50 years

Hongkong
Indonesia
Japan16)
Canada
New Zealand
North Korea
Southafrica
Taiwan
PR China

X + 60 years

India

X + 70 years

Australia
Brasilia
EU
Israel
Switzerland17)
South Korea18)
Russia
Turkey
USA

X + 100 years

Mexico

X denotes the death of the last-surviving author in works whose author is known; otherwise (in most countries) the first publication.

EU law

The European Union (EU) in 1993 and 2006 unified the protection period in its member countries (including Switzerland and Liechtenstein) to 70 years after the death of the authors .

Non EU works

Works that have not been created in the European Union (EU) and whose term of protection has already expired in the country of origin are also considered to be public domain in the EU. This applies e.g. for all US music released before 1923 and for music written in Japan or Canada whose authors died at least 50 years ago.

Copyright collectives

Copyright collectives are private associations to which authors can entrust their use and exploitation rights. The collecting societies then provide in trust for the administration of these rights and the distribution of the resulting revenues. In many countries they have a monopoly character and are therefore under state supervision.

AKM

The Gesellschaft der Autoren, Komponisten und Musikverleger (AKM) was founded in 1897. It corresponds to the German GEMA.

Austro-Mechana

Austro-Mechana represents music authors in their rights with respect to reproduction and distribution of the use of sound and image carriers with their works.

LSG

The Wahrnehmung von Leistungsschutzrechten GmbH (LSG) represents the rights of interpreters and producers of sound recordings and music videos.

The Swiss collecting societies are under the control of the Swiss Federal Institute of Intellectual Property, which also represents Switzerland internationally in matters of intellectual property.

SUISA

Founded in 1923, SUISA (from SuisseAuteurs ) represents the copyright of composers, lyricists and publishers of musical works in Switzerland.

SwissPerform

Founded in 1993, SwissPerform represents the intellectual property rights of musicians, actors, producers and broadcasters in Switzerland.

C3S

In 2013, the Cultural Commons Collecting Society (C3S) was founded as a European cooperative. It wants to assert that unlike GEMA, its members only register individual works for exploitation, that they can choose from different licenses and also define different areas of rights management.

If this idea prevails, the de facto monopoly of GEMA will be broken in the case of Germany.

Germany

Germany has designed the framework set out in the Berne Convention as well as EU law in its Law on Copyright and Related Rights (UrhG). “Related rights” are also called “ancillary copyrights” or “neighboring rights”; they refer to rights on works that are not acquired through authorship, but are similar or related to them.

Works

Works of music are protected by copyright.19) Works are always “only personal intellectual creations”.20) According to German law, the deciding factor is the melody; harmony and rhythm, but also chords and single tones or short tone sequences are not protected as such.

Adaptations

Adaptions of pieces of music are also treated as works if they are personal intellectual creations of the editors, as far as they are not insignificant.21) Adaptations may only be published or exploited with the consent of the author of the original work,22) except when they are done “in free use”; this does not include the adaptation of a melody,23) but a work with its own character has to be created. However, individual parts of a published piece of music may be cited in a separate work.24)

Linked works

Several works may be “linked together” to “joint use exploitation and exploitation rights”.25) This is true e.g. on the lyrics and music of a hit song or a musical or on a ballet, but not on compilations. Then, the rights of all involved authors are to be considered.

Author

The author is the creator of a work.26) For music pieces, this is the composer and (if available) the author of the specially created text.27) The authors have a right to be named.

If the author of a published work is not known, his rights are transferred to the publisher. If the publisher is not known, his rights are transferred to the publisher.28) Copyright may be inherited.

Author's rights

Only the author(s) may publish, exploit and modify a work. They can assign their claims, but are also entitled to a fair compensation for the use of their work.29) The sale of an original does not include the right of use “in case of doubt.”30)

Publication

A work is published by making it accessible to the public with the consent of the claimant.31)

Public

Public refers to several people who are not connected to the exploiter of a work through personal relationships.32) Thus, a performance only in the family or close circle of friends is not public.

Publication

A work has been published when it is duplicated and offered in public in sufficient numbers.33) This includes “wireless” offers.34)

Rights of use and exploitation

Duplication

Any form of reproduction of a protected work (including image and sound recording) is protected (reproduction right).35) This does not apply to non-public private,36) scientific, archival or educational use;37), a maximum of seven copies can be produced for this purpose38) Musical works may only be written off without the consent of the copyright holder; unless they have been out of print for at least two years.39) The source must always be stated.40) Published works of music of “minor extent” may be reproduced in collections for use in schools (but not music schools) and made publicly available; but even then there is a right to compensation.41)

Distribution, performance, playback

Any distribution of a duplicated, protected work is protected (distribution right).42) Any public personal performance of a protected Work is protected (performance right),43) as well as every broadcast 44) and any reproduction by image and sound carriers (reproduction rights).45)

Published works may be performed in public if no entry fee is charged, no performance fee is paid and no prize is sought. In the case of charitable and scholastic performances no compensation has to be paid (not so in religious performances).46)

Examples of royalty-free use are:

  • Playing music at school graduation parties
  • Serenade in the retirement home (but not in the restaurant, because then the host must pay)
  • Singing together while hiking or in the church
Adaptation

The author's work, title and name may not be changed without further ado.47) However, music pieces may be transferred to a different key, if required by the “purpose of use” (e.g., because of the range of an ukulele); translations and excerpts are also permitted under this restriction.48)

Limits of protection

Protection periods

The protection ends 70 years after the death of the last-surviving author.49) For anonymous and pseudonymous works it ends 70 years after publication. 50) From 1.1. of the following calendar year, the work is in the public domain. 51) First publications of works not published and scientific editions of unprotected works are protected for 25 years; the exploitation rights remain with the publisher 52)

Reprints and reprints

Unmodified reprints and reprints of music editions whose periods of protection have expired may be freely reproduced even if a new copyright notice has been affixed (which may be punishable as an IPR). In contrast to the music itself, music engravings are in no case protected “if fifty years have elapsed since the production of the print templates for these music engravings.”53)

Citation right in Germany

A quotation should serve “the intellectual communication” with the work of another person.54) Pieces of a published piece of music may be cited for this purpose in a separate work. 55) The cited melody should be recognizable as a foreign body in one's own work, if it is not used satirically, parodistically or cabaretically. Without reference, however, it is an inadmissible plagiarism.

Practical guidances on performance

Practical guidances on performance attached to a score such as fingerings, breath signs, directions (such as “ad libitum”), up and down strokes or basso continuo or a tablature which transmits the original notation of the piece without significant changes for another instrument such the ukulele, does not possess the necessary “height of creation” in order to be regarded as an independent processing of a musical work and thus to establish a protective right. As early as 1891, Heinrich Maria Schuster stated that “there is no work, but only possibility of action” 56) Ludwig Kuhlenbeck also concluded in 1901 that such “additions” are not protected “if the work itself remains unchanged”.57) The Law on copyright on works of literature and the art of music announced on 19.6.1901 nevertheless protected “the production of excerpts from works of the art of music as well as arrangements of such works for single or multiple instruments or voices”, (Reichstagsprotokolle, 1900 / 03,11, p. 387)) but this was abandoned after the Second World War. In 1957 Eugen Ulmer, the head of the institute for patent right and motor of the German copyright reform, denied that “the attachment of such additions” can be relevant “for the acknowledgment of copyright as in an arrangement”.58) In the Copyright Act of 1966, which replaced the law of 1901, and its later versions, practical guidances are consequentially no longer mentioned.

Orphan works

“Orphan works” in public collections (such as museums and archives) whose rights holders cannot be identified are not protected.59) However, their use is associated with considerable risks, unless possible rights holders are really carefully searched for.

Limitation of action

All claims are statute-barred three years after the end of the calendar year in which they originated and the claimant should have become aware of it “without gross negligence”.60) The deadline is therefore always calculated from January 1 of the following year until December 31 of the year after next. If the claimant could not reasonably become aware of the breach, the claims become statute-barred after ten years. 61)

The legal basis for the work of the copyright collectives in Germany is the Urheberrechtshahrnehmungsgesetz of 1965 and the Verwertungsgesellschaftengesetz from 2006 (to be revised soon). According to this, the companies are obliged to exercise the rights of their members and must provide information about which works and which authors they represent. They have a monopoly on the rights they represent. They are not allowed to make any profits for themselves and are exempt from taxes on income, earnings and assets. The German Patent Office publishes a Listing of existing collecting societies and their responsibilities. In the context of music, the following societies are important:

GEMA

The Society for musical performing and mechanical reproduction rights (GEMA) administers the exploitation and exploitation rights for all works of the authors (composers, lyricists and music publishers) who have joined it. Anyone who wants to reproduce or perform such a work must pay GEMA a fee.

GEMA conjecture
If the collecting society asserts a claim for information that can only be asserted by a collecting society, it is presumed that it exercises the rights of all entitled parties.62)

For a long time, the reversal of the burden of proof has been in force in German case law when it comes to claims of GEMA in the field of popular music. That is, anyone who wants to make dance music entertainment public must either pay the fees required by the GEMA for this or prove in each individual case that the music played by him is not represented by the GEMA. This is called the GEMA conjecture. The GEMA, which has concluded contracts with numerous international collecting societies, invokes the de facto representation of the entire world repertoire of popular music and its artists in Germany. Therefore, it also rejects the view stated in the Berne Convention that pseudonymically published musical works are not protected because it is probable that these unknown artists would also be represented by them. Current case law supports this GEMA conjecture. In a judgment of 2012 it is stated:

In order to disprove the existing GEMA conjecture, the user of the work must explain and prove that the claimant is not entitled to exercise the rights or that there is no protection of the work … By providing only one pseudonym, the alleged author remains anonymous and the defendant's plaintiff makes it impossible to verify the authorship and ownership of the rights and the exploitation power.
VG Musikedition

The Verwertungsgesellschaft Musikedition manages the reproduction rights of the authors (composers, librettists, scientific publishers and music publishers) whom have joined it. In particular, it has concluded arrangements with schools, kindergartens and churches to levy flat-rate fees for photocopies of protected works.

GVL

The Gesellschaft zur Verwertung von Leistungsschutzrechte (GVL) represents artists (interpreters) and the producers of phonograms in the exercise of rights to distribution and reproduction of performances and reproductions. The GVL receives e.g. fees from the manufacturers of raw CDs and memory cards (“raw media”) for the compensation of private copying.

USA

The current legal basis is the Digital Millennium Copyright Act (DMCA) of 1998, with the US joined the Berne Convention.

However, all works created before 1923 continue to be considered public domain and may be used without further ado. Since the accession of the U.S.A., this also applies automatically in all member states.

All works published anonymously and pseudonymically from 1923, all works published by name in 1923–1963 and whose copyright was renewed, and all works published by name in 1963–1977 are protected 95 years after their publication. Thereafter, 70 years after the death of the author (or after the first publication) as a term of protection.

Reprints and scans of works in the public domain are not protected.

An important extension of U.S. law concerns fair use of works.

ASCAP

The ASCAP (American Society of Composers, Authors and Publishers) was founded in 1914 as a monopoly representation of the authors and publishers of music. In its tasks it corresponds to the German GEMA.

BMI

The BMI (Broadcast Music Inc.) was established in the 1940s when ASCAP was banned from broadcasting in 1941 in the dispute over broadcasting fees the music of the authors represented by them imposed. The broadcasters then included in the BMI those musicians who could not enter the ASCAP: non-white musicians, the v.a. Folk, jazz, country and Latin American music played. Since this “niche music” turned out to be very popular, the ASCAP soon had to back down.

HFA

The Harry Fox Agency was founded in 1927 by the National Music Publishers Association (NMPA) to award and pay for “mechanical licenses”). This allows, in whole or in part, the copying or use of protected, recorded works, depending on the type of license. For example, musicians who have participated in a performance may acquire the mechanical license to promote themselves with a portion of that record.

Japan

Japanese copyright law conforms to the Berne Convention. Legal basis is the Copyright Law (著作権法, Chosakukenhō) of 1980 ( English translation). Legally, a work (著作 chosaku) is “what creatively expresses ideas or feelings and belongs to literature, science, art or music”. Author (著 作者 chosakusha) is the personal creator of a work. The term of protection ends 50 years after the death of the long-standing author or after the publication of an anonymously or pseudonymically published work. Neighboring rights (著作隣接権 chosaku rinsetsuken) of performers or publishers of phonograms expire 50 years after initial recording or first distribution.

One of Japan's historical peculiarities is that when the San Francisco peace treaty was signed in 1951, Japan had to commit to extend the protection period of literary and artistic rights in the countries of its enemies between December 7, 1941 (Pearl Harbor attack) and April 27, 1952 (enforcement of the peace treaty) for this period (i.e., around ten years) (in Japan called “war surcharge” 戦時加算 senji kasan).

Before 2000, copyright collectives in Japan had to be officially approved. Since then they are only required to register. The Japanese Society for Rights of Authors, Composers and Publishers (JASRAC, 日本音楽著作権協会 Nihon Ongaku Chosakuken Kyōkai, founded in 1939 as 大日本音楽著作権協会 Dai-Nihon Ongaku Chosakuken Kyōkai) manages fiduciary copyright and ancillary copyright. It is the largest Japanese copyright collective, but in recent years it has been legally approached in various contexts for taking advantage of a quasi-monopoly position.

Free Sheet Music

Various organizations offer public musical works in digitized form; partly as a scan of unprotected prints, partly newly arranged.

IMSLP

The International Music Score Library Project (IMSLP) offers non-public musical works (as of June 2018: 435,000 works) in various forms and edits. It is governed by Canadian copyright law, which provides for only a 50-year protection period. There are numerous search options.

Mutopia

The project Mutopia also offers public music (as of the end of 2015: approx. 2,000 pieces).

SMC

The Sheet Music Consortium (SMC) offers open access to digitized holdings scores of affiliated libraries in the US. Among them are protected works according to American copyright. It is possible to search through the standardized metadatabase.

Work data bases

References

  • Grages, Jan-Michael: Verwaiste Werke. Mohr Siebeck 2013
  • Hoeren, Thomas: “Urheberrecht und Musik in der digitalen Revolution”. In: Arnold Jacobshagen und Frieder Reininghaus (Hg.): Musik und Kulturbetrieb – Medien, Märkte, Institutionen. Laaber Verlag 2006, S. 195–217.
  • Homann, Hans-Jürgen: Praxishandbuch Musikrecht: Ein Leitfaden für Musik- und Medienschaffende. Springer-Verlag 2007
  • Kling, Camilla: Gebietsübergreifende Vergabe von Online-Rechten an Musikwerken: Probleme einer effizienten Lizenzierungspraxis unter Geltung des VGG. Walter de Gruyter 2017
  • Tietze, Thomas: Täter im Frack (4. Aufl. 2013)

7) Art. 7 (1) RBC; in works with multiple authors the last surviving co-author: Art. 7bis RBC.
12) Kling 2017, pp. 14–15
16) Movies: 70 years
17) Before 1.7.1993: 50 years – raising does not apply retroactively!
18) Before 1.7.2013: 50 years
20) § 2 (2) UrhG
21) § 3 UrhG
22) § 23 UrhG
23) § 24 UrhG
24) § 51 UrhG
25) § 9 UrhG
26) § 7 UrhG
27) § 65 (3) UrhG. If a poem is subsequently set to music, the following applies: the poet is not the author of the piece of music.
28) § 10 UrhG
29) §§ 8 , 11, 12 , 31, 32 UrhG
31) § 6 UrhG
32) § 15 UrhG
33) § 6 UrhG
34) § 19 UrhG
35) § 16 UrhG
36) Sharing with relatives or close friends is therefore allowed!
37) § 54 [1 UrhG
38) As the Federal Court of Justice ruled in 1978 ( BGH, 14.04.1978 - I ZR 111/76).
40) § 63 UrhG
41) § 46 UrhG
42) § 17 UrhG
43) § 19 UrhG
44) § 20 UrhG
45) § 21 UrhG
47) § 39 UrhG
49) 64 UrhG
50) 66 UrhG. In the case of unpublished works, this period applies after the creation of the work.
52) §§ 7071 UrhG
53) BGH, 06.02.1986 - I ZR 98/84. The 50 years mentioned here by the court represent the ceiling, which could well be lower, but that is subject to judicial examination.
55) § 51 UrhG
56) Heinrich Maria Schuster: Das Urheberrecht der Tonkunst in Oesterreich, Deutschland und andern europäischen Staaten, mit Einschluss der allgemeinen Urheberrechtslehren. Munich and Berlin: C.H. Beck 1891, p. 74.
57) Ludwig Kuhlenbeck: Das Urheberrecht (Autorrecht) an Werken der Litteratur und Tonkunst und das Verlagsrecht. C.L. Hirschfeld 1901, p. 213.
58) Eugen Ulmer: Der Rechtsschutz der ausübenden Künstler, der Hersteller von Tonträgern und der Sendegesellschaften in internationaler und rechtsvergleichender Sicht – Bericht und Studie über den Bern-UNESCO-Entwurf einer internationalen Vereinbarung. München und Berlin: C.H. Beck, p. 34.
59) § 61 UrhG
60) http://www.gesetze-im-internet.de/urhg/ § 102 UrhG in connection with § 195 BGB and § 199 BGB.
62) § 13 c (1) UrhWahrnG