On Jan. 22, 2009, the German Federal Court of Justice rendered judgment (I ZR 19/07) in a case concerning the question of whether or not the Berliner Sing-Akademie, a professional choir in Berlin, had a right to claim exclusive rights of exploitation to Vivaldi’s opera “Motezuma” under Sec. 71 of the German Copyright Act, asserting that the work had never been published prior to the claimants’ initial release of the work after expiry of its copyright protection. This case, which has been brought before the court more than 250 years after the composer’s death, took place against the background that the opera had its debut performance under the composer’s direction in the year 1733. The opera’s music (other than the libretto), however, had long been thought to have gone missing. In the year 2002, the Berliner Sing-Akademie discovered in its archive the manuscript of the music and subsequently released facsimile copies of it. It believed to have acquired exclusive exploitation rights under Sec. 71 of the Copyright Act as initial publisher.

However, its claim was dismissed in every one of the three instances. The German Federal Court of Justice held that the purported publisher of the first edition was required to show and prove that the work had not been released before. At first, this may well be asserted given the difficulty of proving a negative fact, whereupon the defendant would be required to demonstrate indications in support of the contention that the work had already been released. This contention would then have to be rebutted by the claimant.

A work is deemed to be released for purposes of German copyright law if a sufficient number of copies of the work have been offered to the public or brought into circulation with the consent of the right-holder. It could be concluded from the arguments brought forward by the parties that in the 18th century, it was common that pieces of work commissioned by Venetian operas, such as the contested opera “Motezuma”, would be deposited with the opera house in the form of a score of a musical work. Interested third parties were then allowed to prepare copies of the score. It could not be determined whether or not this had been the case with “Motezuma”. The claimant was unable to prove, however, that there had been a departure from this usual practice in the case of the opera “Motezuma”. The Federal Court of Justice upheld the judgments of the lower instance courts and held that the opera had already been released in 1733, precluding the Sing-Akademie from the assertion of any claims under Sec. 71 of the Copyright Act. This case demonstrates that a party seeking to claim under Sec. 71 of the Copyright Act is well advised to verify carefully whether or not an earlier release date may exist, in particular with respect to very old works.