Ownership and transfer

Eligible owners

Who is the owner of a copyrighted work?

The creator - that is, the author, composer, architect or photographer - is the owner of the work.

In Germany, only individuals can be the owner of a copyrighted work - companies cannot.

Employee and contractor work

May an employer own a copyrighted work made by an employee?

German copyright law does not recognise the ‘work made for hire’ doctrine. Even when an employee creates a work in the course of his or her employment, the company will not become the owner of the copyright.

However, employers are privileged in the sense that where the author has created the work in the fulfilment of obligations resulting from an employment or service relationship, unless otherwise provided in accordance with the terms or nature of the employment or service relationship. For instance, the Copyright Act provides that where a computer program is created by an employee in the execution of his or her duties or following the instructions of his or her employer, the employer shall be exclusively entitled to exercise all economic rights in the computer program, unless otherwise agreed.

May a hiring party own a copyrighted work made by an independent contractor?

An independent contractor will remain the owner of the copyright. However, the independent contractor can grant licences to other persons authorising the use of his or her works.

An agreement does not have to be in writing, but it is recommended as proof may be needed later on.

Joint and collective ownership

May a copyrighted work be co-owned?

Where several persons have jointly created a work without it being possible to separately exploit their individual shares in the work, they are joint authors of the work.

The right of publication and of exploitation of the work accrues jointly to the joint authors; alterations to the work shall be permissible only with the consent of the joint authors. However, a joint author may not refuse his or her consent to publication, exploitation or alteration contrary to the principles of good faith. Each joint author shall be entitled to assert claims arising from violations of the joint copyright; he or she may, however, demand performance only to all of the joint authors.

Where several authors have combined their works for the purpose of joint exploitation, each may require the consent of the others to the publication, exploitation or alteration of the compound works if the consent of the others may be reasonably expected in good faith.

Transfer of rights

May rights be transferred?

Unlike in some other countries, copyright as such cannot be transferred from the creator to a third party except by inheritance.

Licensing

May rights be licensed?

Yes. The author can grant licences or rights to use to individuals or legal entities. Such rights can be exclusive or non-exclusive, limited or unlimited in time, content or territory.

Are there compulsory licences? What are they?

The Copyright Act stipulates a compulsory licence for the production of audio recordings. That means that if a producer of audio recordings has been granted a right of use in a musical work entitling him or her to transfer the work onto audio-recording mediums and to reproduce and distribute these for commercial purposes, the author shall be required upon release of the work to also grant a right of use with the same content on reasonable conditions to any other producer of audio recordings whose main establishment or whose place of residence is located in the territory to which this Act applies.

Are licences administered by performing rights societies? How?

Collective management organisations generally manage the rights of creative people collectively.

Collective management organisations are associations of creative people organised under private law. They grant licences for the works managed by them, monitor the use of these works, collect royalties in order to subsequently distribute the revenues to the rights holders on the basis of distribution schemes.

At present, 13 collective management organisations have the authorisation to conduct business in Germany. Since collective management organisations often have a monopoly position and act in a fiduciary capacity, they are subject to the government supervision, which is exercised by the DPMA.

Termination

Is there any provision for the termination of transfers of rights?

As the copyright itself is non-transferable, there is also no provision for the termination of rights.

In the event of death of the author, the copyright passes to their beneficiary.

Recordal

Can documents evidencing transfers and other transactions be recorded with a government agency?

No. There is no government agency available where such documents can be recorded.