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(P) notices under (reformed) German Copyright Law

October 2008 - Intellectual Property. Legal Developments by Hertin Anwaltssozietät .

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Again, shortly after the last major reform of the German Copyright Act in 2003, several aspects of the law have been adopted to European legisla-tion, especially EU Directive 2004/48/EC on the Enforcement of Intellec-tual Property Rights ("Enforcement Directive"). The new law became ef-fective Sept. 1, 2008.

Most of the new rules only put into black letter law what already has been case law so far, but some changes will have significant impact. One of more important changes is reformed § 10 UrhG (sec. 10 of the German Copyright Act), which, in short, states that the person named as the author or copyright holder on a specific work or a copy thereof is presumed to be the rights owner. Although this presumption can be rebutted it shifts the burden of proof to the other party denying that person's or entity's rights ownership or claiming it for himself. When talking about older works where sometimes the rights chain is hard to document and proof this presumption becomes very important.

However, under the old German copyright (until Sept. 1, 2008) this presumption only applied to copyright holders such as text authors and music composers but it did not cover film and music producers. Sound recordings and film productions have separate copyrights that are distinct from those of the underlying work (a musical work, a film script, etc.). These rights are owned by the music or film producer.

Internationally, based on the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms Art. 5, a person or entity who claims such producer's rights puts a (P) notice (sound recording copyright sign, a circled "P") on a production and all copies thereof.

Under German Law until Sept. 1, 2008 the (P) notice had no relevance: in 2002 the German Supreme Court (Bundesgerichtshof BGH) explicitly decided, that based on the law then the (P) notice has no specific meaning and that no legally relevant presumptions follow from it.

Now, due to the reform, also in Germany it is presumed by law that the person or entity who is named after a (P) notice printed on a CD or DVD is the owner of the producer's rights to the sound or film recording on such CD or DVD. The burden of proof for the contrary is on the opposing party.

So far this new law has not been tested in German courts. Experience from other countries such as the UK, where a similar presumption follows from Section 105 of UK Copyright Design & Patent Act 1988, shows, that pirates sometimes rely on false chains of title to show that the court cannot presume the (P) notice is enough. Sometimes they even use own labels with (P) notices to counter the rebuttable presumption. Then the rights owner still ends up proving title.

Dr. Urs Verweyen, LL.M.

Attorney-at-Law (Germany and NY)

HERTIN Anwaltssozietät