Information and Documentation in the Copyright Law of the German Democratic Republic
Identifieur interne : 001066 ( Main/Corpus ); précédent : 001065; suivant : 001067Information and Documentation in the Copyright Law of the German Democratic Republic
Auteurs : Joseph StrausSource :
- Review of Socialist Law [ 0165-0300 ] ; 1982.
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DOI: 10.1163/187529882X00037
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<p>5 INFORMATION AND DOCUMENTATION IN THE COPYRIGHT LAW OF THE GERMAN DEMOCRATIC REPUBLIC* JOSEPH STRAUS Member of the Staff of the Max-Planck-Institute for Foreign and International Patent, Copyright and Competition Law, Munich, BRD 1. Introduction In the areas of interface between copyright law and modern technology, in- formation and documentation are assuming a steadily growing significance. The enormous quantities of data to be found in works that, for the most part, are protected under the copyright statutes, do not, or, at any rate, should not, constitute an end in themselves. In keeping with their authors' intent, they should be capable of reaching their target - the reader or the listener - in the quickest and least complicated manner, and in an unaltered form. They should also be readily accessible to him at all times. It is here that informa- tion and documentation assume their role as intermediaries, a role that ex- tends not only to processing and storing of data, but also to ensuring their availability. It does not come as a surprise that in the process, despite a common core of agreement as to the fundamentals, conflicts can arise between the interests of copyright owners and those of the information and documenta- tion organizations. Such potential conflicts, of course, must be anticipated and dealt with by copyright law. The copyright legislation of the GDR has already addressed itself to this task and allots considerable space to questions pertaining to information and documentation. A closer look at the system of norms devised in this con- nection seems appropriate. It will be useful for a better understanding of this system if its discussion were to be prefaced by an examination also of its antecedents and of some fundamental questions of the legislation currently in force. - 1.2. Post-war developments and the Law of 1965 Just as in the Federal Republic of Germany, endeavors were made also in the GDR to make do initially with the old Copyright Act in Literary and Musical Works (LUG), the Copyright Act in Works of Art and Photography (KUG), and the Act on Publishing (VerlG), which dated back to 1901 and 1907. In the years after 1951, the only attempt at an adaptation to the changed social *This article originally appeared in German in 86 UFITA 1980. Translated by Serge L Levitsky, Parker School of Foreign and Comparative Law, Columbia University School of Law, New York, NY.</p>
<p>6 and economic conditions consisted in the enactment of a series of so-called frame contracts or standard contracts between publishers' organizations, on the one hand, and authors' societies, on the other.' While the clauses of these contracts lacked the legally binding force of a collective agreement, they had nevertheless introduced significant changes particularly into the laws relating to publishing.2 Towards the end of the 1950s, a growing conviction was asserting itself which held that under the combined impact of the social transformation and the rapid development of new technological means in fields relevant to copy- right, a revision of the copyright legislation was unavoidable. From the very beginning the predominant view favored special legislation that would en- compass also the law relating to authors' contracts.3 In particular, the new law was to make clear "that copyright was a right granted to the author by the State, which represented the will of the ruling class in this field, elevat- ed into law".4 During the debates surrounding the drafts of a new copyright law, made public in 19595 and 1960,6 the underlying premise was that it was the inherent task of copyright to further and protect the interests of society at large in the development of literary, scientific, and artistic creation, and to assist in the unfolding of a many-faceted national culture. Keeping in mind these overriding interests of society, the personal interests of the author in his work were to receive a more effective protection than they have thus far been able to enjoy in the practice of any other social system.7 Along with such ideologically motivated efforts at "overcoming" bourgeois concepts of in- tellectual property,8 close attention9 has also been paid, in the course of legislative work as well as during jurisprudential debates, to problems, al- ready perceived at an early stage,1o arising from the development and spread of modem techniques of reproduction, as well as to questions having to do with ensuring an effective and smooth operation of the documentation centers. Against this background has the "Law on Copyright" (hereinafter URG) been enacted on 13 September 1965, effective as from 1 January 1966 (English translation in Copyright 1966, 150 ff). The URG, in keeping with the pre- liminary drafts and in "an unbridgeable opposition to the bourgeois antago- nism of interests",11 proceeds from the fundamental principle of an "objective correspondence between the interests of the entire community and its authors in the process of artistic creation and of its dissemination" .12 The tasks and functions of copyright as a system of legal norms ("objective copyright law") in the GDR13 are defined in the Preamble and in the basic principles laid down in Sec.l of the URG: "By its copyright law, the socialist State guarantees extensive protection to the rights of authors of literary, artistic and scientific works. It as- sures to writers, artists, men of science, and to all citizens, the pros- pect of devoting themselves in complete tranquility to their activities in the field of intellectual creation. At the same time, copyright protects and encourages the assimilation of art and science by all citizens, and their ever-increasing partipation in the various aspects of cultural and intel- lectual life in the midst of socialist society" (para.3 of the Preamble).</p>
<p>7 In the GDR it is thus the task primarily of copyright law to promote and protect the creation of literary, artistic, and scientific works while at the same time safeguarding the moral and material interests of the author of these works, and likewise to enable such works, to the extent to which they "serve in the progress of society, in the diffusion of humanistic ideas, and in the safeguarding of peace and promotion of friendship among peoples" to achieve the widest possible impact and use (Sec.l, para.l, URG).14 This somewhat more detailed digression into the antecedents of the URG, and the restatement of its proclaimed goals and tasks, seemed necessary be- cause in the GDR even copyright law and the law of publishing have been assigned the express task of advancing the interests of the State;1 5 copyright law, too, in other words, has an eminently political coloring,16 with a marked bias in the balancing of conflicting interests. Since the field of in- formation and documentation has a particularly great impact upon the interests of every society, the above remarks must be taken into account at all stages in the discussion of the problems with which the present article is con- ceded. 17 7 1.2. The socialist right of personality The legislator and the prevailing doctrine in the GDR have spared no effort in trying to adjust "subjective copyright law", i.e. the cluster of personal rights which belong to the author, to the re-defined concept of the so-called "objective copyright" (i.e. the system of copyright norms), and to integrate it into this new system. The result of these endeavors is termed "socialist right of personality" in Sec.l3 URG ("Contents of Copyright") which gives rise both to non-property rights, such as the recognition of authorship and of the mention of name (Sec.14 URG); the right of first publication (Sec. 15 URG); the right of inviolability of the work (Sec. 16 URG); protection of the author's reputation (Sec.17 URG); and to property rights of the author, to wit: the right of reprodution or fixation of the work, the right to circulate it for purposes of gain, to publicly recite, perform, or demonstrate it, exhibit it, to screen, broadcast or telecast it, and also to decide about the public use of adaptations, rearrangements or translations of his work (Sec.18, para.l and 3 URG). ' It is not possible to discuss here in detail all the peculiarities of the "so- cialist right of personality" within the meaning of Sec. 13 URG. The mere enumeration of its contents suffices to show that it should not be confused with the concept of the author's moral rights according to the legal termino- logy of non-socialist systems (Urheberpersbnlichkeitsrecht in the copyright law of the German Federal Republic) since it lists personal non-property rights alongside with pecuniary rights1 s and assigns equal weight to both.l 9 This in itself does not, of course, necessarily constitute a substantive inno- vation.20 The novelty lies, first and foremost, no doubt in the decisive domi- nation of social interests over the entire phase of creation2l and use of in- . dividual creative achievements, a domination which finds its statutory expres-</p>
<p>8 sion in Article 11, para.3, 22 and Article 1823 of the Constitution of the GDR of 6 April 1968, and in the Preamble, the basic principles of Sec.l, and the norms relative to free utilization of a work (Sec.21 through 31) and to legal licenses (Sec.32) of the URG. The inhibiting effect of this domination upon "subjective copyright law" is felt less in the domain of personal non-property rights (Urheberpersönlichkeitsrecht)24 than in relation to the exclusive prop- erty (pecuniary) rights of the author. While, for instance, under Section 18, para.1 URG, the author is granted the right to disseminate his work for pur- poses of gain, such a recognition of the author's subjective copyright in his work does not, in the predominant jurisprudential opinion, confer upon him, in and of itself, the right to demand that his work be disseminated. Society itself, through its predominantly nationalized cultural establishments, is, in the final analysis, the judge of whether a work deserves to be reproduced and distributed.*25 It therefore goes almost without saying that even in the areas spared by the provisions on free utilization of a work,26 the author enjoys but a limited right to dispose of his work, and that the remuneration payable to him for the use of his work is not calculated according to princi- ples prevalent in a market economy, but represents "his share in the pro- ceeds from the exploitation of his work, corresponding to his contribution to society".27 2. Protected Works 2.1. Eligibility for protection Pursuant to Sec.2, para.1 URG, copyright extends to works of literature, art and science extant in an objective form capable of perception, and represent- ing the product of individual creative activity. It is without significance, in this connection, by what means or processes the works have been created. They can also exist as a sketch or an outline. Para.2 of Sec.2 URG lists the following as examples of potentially copyrightable works: (a) literary works (writings, speeches, and lectures); (b) musical works; (c) stage works (dramatic, musical-dramatic, choreographic and pantomimic); (d) paintings, sculptures, works of graphic art and of industrial graphic and applied art; (e) works of cinematography; (f) television works; (g) radiophonic works; (h) works of photography and photo montage; and (i) works of architecture. The URG thus restricts its protection to works of literature, art, and science,28 but operates with a single concept of a "work", common to all these categorieS,2 9 without, however, defining it.3 0 As a first condition of copyrightability, the law requires that the work be the result of individual creative accomplishment, i.e. an intellectual creation in which the originality is tied to the author's personality both in content and in form.31 In the prevailing jurisprudential view of the GDR, the degree of individuality required of intellectual creations should not be excessively high.32 Individuality in a work does not call for originality in the sense of novelty, either in respect to the subject matter or to the form of presenta-</p>
<p>9 tion. Nor is the requirement of individuality in intellectual creations tied to an assessment of quality, inasmuch as every independent intellectual-artistic creation contains a modicum of quality, however small.3 If, for instance, the ideas contained in letters, research reports, theatre programs, etc., are creatively expressed,34 or if a directory is arranged according to some distinct, unconventional criteria,35 they, too, can become "works" within the meaning of Sec.2, para 1 URG. A predominantly editorial arrangement of pre-existing materials, on the other hand, does not fulfill this requirement.36 Without going deeper into the questions raised here, it should be pointed out that even though Sec.2, para 2 URG does not claim to contain an exhaustive listing of individual categories of copyrightable works,37 even performances (Leistungen) which enjoy protection as related rights (Leistungsschutz) under Sec.78 URG, such as plans and sketches serving scientific and technical purposes (para l(b)), illustrations and plastic representations of a scientific or technical nature (para 1(c)), and even maps and other geographic or ' similar representations (para l(a)) which do not typically qualify as "works" may, nevertheless, in some exceptional cases be eligible for protection as copyrightable works within the meaning of Sec.2, para I URG.38 Individuality and creativity are conceivable even in the case of such performances (Leistungen), but they must not be the result of applied - frequently considerable - technical skills alone.3 9 As a further condition of copyrightability of a work, Sec.2, para I URG requires that the product of individual creativity be expressed in a form capable of being "objectively perceived". No doubt this means that as a rule the work must have been fixed in a tangible medium of expression, but the embodiment in a tangible form is not in itself a prerequisite for the existence of a "work" as an object of copyright. It acquires significance only in ques- tions relating to proof. There can be no doubt that even extemporaneous speeches, or poems which their author recites from memory, and similar works, possess the necessary "objectively perceivable" form. It is imperative but quite sufficient if contents and form are so expressed that the individual creative achievement can be objectively recognized.4o ' 2.2. Protection of individual parts of a work and of its title Pursuant to Sec.3 URG, copyright protection is not limited to the work as a whole, but is expressly extended also to its individual parts. Jurisprudence ' in the GDR looks upon this norm as a fundamental and necessary addition to the author's moral rights (Urheberpersönlichkeitsrecht)41 1 which assumes a particular significance in conjunction with the prohibition to mutilate or distort the work in any way (Sec.16, Para 1 URG), and likewise in connection with the freedom to quote (Sec.26(a) URG) and the corresponding duty to indicate the source of the quotation (Sec.28 URG). If an individual part of a work is to receive protection under Section 3 URG, it must possess both, a quantitative as well as a qualitative dimension, the latter either contained within itself or based on its relation to the whole work. In accordance with</p>
<p>10 this view, Thieme gave the following definition of the concept of "part of a work" within the meaning of Sec.3 URG: "Part of a work is made up of such series of symbols or patterns of symbols which possess a semantic and a pragmatic aspect as well as an individual creative nature, and are capable of being isolated within the work as a whole either in space or in time." Thieme completes this definition by adding that "the individual creative nature of the part may be either embodied within the context of the part itself or lie in its relation to the contents of the entire work."4 2 Although some of the peculiarities of works of science are still to be discussed in greater detail further below, it may be useful to set forth here certain of Thieme's views that are of particular interest in the context of the present discussion. In Thieme's opinion,43 which remains unchallenged in the GDR, even mathematical formulae and those of physics, if they appear within the body of a work, may be granted protection under Sec.3 URG, since they, too, not unlike a series of symbols, could be considered a transposition of a thought or of a reality into a system of symbols.44 Thieme is also in favor of extending, on similar conditions, and despite the provisions of Sec.78 URG, the protection available to parts of a work under Sec.3 URG, to scientific diagrams and sketches, "at any rate to those which appear in the context of a conventional language".4 5 Apart from the work in its entirety and the individual parts of the work, the URG protects expressly also the title of the work. This protection is carried out along two different lines: According to Sec.3 URG copyright extends also to the title of the work "if it possesses the character of an individual creation".46 There is a consensus in GDR jurisprudence that such a condition can be met only in exceptional cases.4 ? It is met only when the title in and of itself embodies a meaningful statement which fulfills the general requirement of individual creativity imposed upon all works as a precondition of their copyrightability, and the statement, furthermore, is intelligible.4$ 8 Independently of the copyright protection under Sec.3 URG,4 the title of a work enjoys protection against the risk of confusion, within the framework of the related rights provided for under Sec.84 URG. As to the legal nature of this protection, it derives not from copyright law proper, but rather the law of unfair competition and commercial law.so The only prerequisite for eligibi- lity for protection, in this case, is the ability of the title to serve as a criterion of differentiation, lie. its capability of distinguishing the work from other works.51 To the extent to which this protection cannot be invoked by the author against just any unauthorized use, but rather against the use of the same or a similar title in a different work, in a form capable of causing confusion in business transactions, such protection is, as a rule, of little significance for the domain of information and documentation.5 5 Protection of the title of a work against the risk of confusion continues, according to Sec.85 URG, until expiration of protection of the work itself.</p>
<p>11 2.3. Protection of adaptations ' In the GDR, too, copyright extends not only to original works, but also to adaptations and transformations of the work, or its translation into a different language. Although Sec.4, para 1 URG does not specifically define the con- ditions under which protection is granted, it seems clear that the overall intent of the law has been to subordinate protection to the general conditions of eligibility even in this case.53 The rule applies that if an adaptation is to qualify for copyright protection, it is not enough that all the essential com- ponents of the original work have been preserved by the adaptation; rather, the adaptation itself must contain additional features which themselves meet the required standards of individual creation.54 The URG, as a general rule, permits third parties, lie. persons other than the author of the original work, to freely adapt the works of others, but the copyright of the author of the original work remains unaffected by the copyright of authors of adapta- tions or translations (Sec.6, para 3 URG). He alone possesses under Sec.18, para 3 URG the exclusive right to decide whether the adaptations or trans- lations of his work may be "utilized" within the meaning of Sec.18, para 3 URG, i.e. reproduced, fixed, disseminated for lucrative purposes, etc.55 As regards the question of adaptations in the form of reference reports (Referate), information articles (Infonnationsartikeo, brief summaries, etc., which is of particular importance in the context of this essay, it will be discussed separately further below. 2.4. Works excluded from copyright protection According to Sec.5, para 1 URG, no subjective copyright arises in regard to items of news and communications on contemporary events as they occur. Inasmuch as, according to the general principles governing Sec.2, para 1 URG, the subject matter treated in a given work does not, in itself, engender a subjective copyright, GDR jurisprudence56 6 interprets the provisions of Sec.5, para 1 URG as being merely an elucidation of this general principle, which it was appropriate to spell out in view of the special socio-political significance of the transmission of news. Sec.5, para 1 URG does not, however, apply when news items have been used as the object of an indi- vidual creative treatment, e.g. in a feature article. 5 7 Furthermore, copyright does not extend to legal regulations of all kinds, court decisions and public announcements (Sec.5, para 2 URG). Legal regula- tions, in this case, are not limited to laws, decrees and orders, but also include assimilated norms such as the guidelines of the Supreme Court of the GDR. Even the term "court decisions" is given a wide meaning: it includes also all decisions of the Offices of State Notaries, of the State tribunals dealing with contract disputes, of the Patent Office, as well as the awards of conflict and arbitration commissions.s 8 The interpretation of the concept "public announcements", within the meaning of Sec.5, para 2 URG, brings to the fore a particularly interesting</p>
<p>12 set of legal problems. In contrast to para 1, para 2 often excludes from copyright protection works which are eligible for protection according to Sec.2 URG. Whenever these works do not constitute legal regulations or court decisions but represent, for instance, manufacturing specifications or des- . criptions of inventions in patent applications,59 they cease to be protected only through being brought to the notice of the public. Muller and Thieme6 0 have devoted a great deal of attention to the question of "public announce- ments". They have also examined in detail the question of the relationship between the concepts of "public" and "official". In their opinion, a notice does not assume that the full text e.g. of a manufacturing standard must be reproduced in it, as long as it is defined in such a way "that it becomes accessible to all by means of the notice which contains at the very least pertinent source references, and such access cannot be denied".61 1 The concept of "public notice" is broader than the concept of "official announce- ment", since it encompasses not only notifications issued by an agency endowed by competent government authorities with official powers and acting within the limits of its jurisdiction, but also those issued by other offices "in discharge of tasks of public interest".6 As a result, Muller and Thieme believe, even when the URG is applied to works published abroad, the same interpretation of "public announcement" must prevail, ie. one not limited to "official" notices. Accordingly, even notices of private associations, such as those issued by the West German Committee on Standards (DIN-Standards), or the Association of Electrical Engineers of the Federal Republic of Germany (VDE-Standards), fall within the scope of Sec.5, para 2 URG, inasmuch as these associations, "while not exercising official functions, do perform tasks which are in the public interest, and for the fulfillment of which they claim, and in fact possess, appropriate authority".63 Muller and Thieme see there- fore nothing objectionable in the incorporation of DIN-Standards into the GDR system of standards and specifications, which has been effected in all specifi- cation sheets.6 64 . 3. Subjects of Copyright Before addressing the question whether, and then under what conditions, in- dividual categories of works of science, which are of particular interest in the context of the present study, are eligible for copyright protection under Sec.2 URG, it appears useful to touch briefly upon the question of the sub- jects of copyright in the copyright system of the GDR. According to Sec.6, para 1 and 2 URG, copyright originates as the result of the fact of creation of a work, and it belongs only to the person who had created the work. Copyright cannot come into being, nor, as a general rule, be restricted, by means of a contract, although the author remains free to transfer to others individual exploitation rights by means of contracts for use of the work (Sec.19, para 1; Sec.37 URG).6 An original copyright of a juristic person is thus unknown to the URG.66 By contrast, the author of a work created in fulfillment of obligations arising under labor law does possess copyright in</p>
<p>13 such work. Here, too, questions pertaining to the exercise of the copyright must be settled by contract, i. e. in this instance, within the framework of a labor contract (Sec.20, para 1 URG) 7 4. Copyightability of Some Works of Science 4.1. General remarks It has already been pointed out the the URG extends its protection expressly also to works of science. Reference has also been made, in this connection, to the fact that the URG favors a single concept of a "work" which applies, in equal measure, to literature, art, and science.6 8 Although copyright protec- tion should be analysed, in regard to all fields to which it applies, as pro- tection of the individual creative make-up (Gestaltungsschutz) 6 regardless of the form and method used, the work of science possesses, nevertheless, certain distinctive features which are anchored in the peculiarities of the scientific work itself, and are taken duly into account in legal literature in the assessment of its copy righ lability. 7 o The following point deserves to be stressed before discussing the special problems which are of interest to us here: GDR jurisprudence, following Troller,71 to whom express reference is made, concedes to works of science the claim to autonomy under copyright law. True, some, again following Troller,72 seek the object of protection of a work of science in its scientific originality, not its linguistic expression or pictorial representation. 7 But in the predominant view, the object of pro- tection is clearly the "scientific nature" (Wissenschaftlichkeit) of the work.74 Muller and Thieme however, who have delved in great depth and with great thoroughness into these problems, point out that Troller's and Gross- gebauer's concepts might lead to the negation of "individuality" in the form of the statement, and in so doing equating "individuality in the creative make- up" (Gestaltung) with "originality of the expression" (Ausdruck), resulting of necessity in the exclusion from copyright protection of the bulk of scientific works. Still, "individuality", in their opinion, consists, in the case of a scientific work, "in the measure in which the scientist has succeeded in finding a precise and accurate representation [Darstellung] of his concepts". Protection is not aimed at the realization of the thoughts embodied in the work, but is meant to secure the author's exclusive right to the reproduc- tion, distribution, etc., of the representation of his thoughts.76 4.2. Non-verbal representations Using the approach just described, Muller and Thieme deal in their disserta- tion also with the extremely important problem of the copyrightability of non- verbal representations which, in scientific works, take on the form principally of formulae. In contrast to Grossgebauer,77 they provide a fundamentally affirmative answer to the question of the copyrightability of series of symbols as well as of patterns of symbols.78 They see no impediment in the difference</p>
<p>14 which exists between verbal and non-verbal representations as to the range of possibilities available to the author in the creative make-up (Gestaltungs- m6glichkeiten) of his work, and which consists in the ability, in the first case, to express the same thought, etc., in several different ways, while in the latter case there exists no choice between different possibilities in the formulation of a valid statement.79 The determining factor, in their opinion, is whether the scientist is successful "in giving his statement an adequate form by means of symbols". The question whether a non-verbal representation consisting of series of symbols or, no doubt, also patterns of symbols, con- stitutes a copyrightable "work", is to be answered, in the opinion of Muller and Thieme, according to whether or not the statement, expressed by means of the formula, differs in its contents sufficiently from others and is there- fore difficult to formulate, while at the same time satisfying the requirements of individuality and creativity in its make-up (Gestaltung), or the representa- tion by means of the specific formula can still be regarded as an individual creative achievement because it confers a more precise, or a more abstract, form to an already known content or an already existing finding.8 ° 4.3. The deposit system and the information article Under the influence of the debates which had taken place worldwide in the 1960s relating to the explosive growth of scientific literature, and the diffi- culties in assimilating it, accompanied by a very high waste factor (number of unsold copies),81 led in the GDR, too, to exchanges of views on how best to solve these problems. After a careful observation of foreign experiences,82 2 the decision was taken to set up, initially on an experimental basis, a new kind of supplemental83 supply system of literature, the so-called deposit sys- tem (Depotsystem). Thus a new category of "works" came into being: the "information articles" - closely related to the Referate, i.e., "reference reports" (abstracts, brief summaries). Prior to entering into discussion of selected questions relating to definitions and to eligibility for copyright pro- tection, it might be useful to become more closely acquainted with the aims and purposes of the deposit system and the practical experience gained in the GDR,84 up to now, in using it. For the theoretical aspects of the development of the deposit system in the GDR, the writings of Wass85 were of fundamental importance. The initiative in introducing the system in practice belongs to the publishing house Verlag Technik. In 1967, Verlag Technik published, as specifications for "scientific and technical journals", guidelines for "information articles" (VT Standard 3.002.67) and for "legal questions relating to information articles in conjunc- tion with deposit" (VT Standard 3.003.67). These standards, which in sub- sequent developments have served as orientation guides for other publishing houses as well86 in setting up their own deposit systems, not only defined the concept of the "information article" and settled its contents, but also determined the structure of the contents. The information article, according to these guidelines, is "a self-contained technical article. It contains the most</p>
<p>15 significant data and information abstracted from an original detailed scientific or technical work (hereinafter referred to as "report"), maintaining its logical cohesion, and set forth in a linguistically and pictorially interesting form".87 7 The contents of such an article "must consist of specific statements and refer to the report only in source references...The information article must inform the reader who is not directly working on the topic of the report about its contents in such a manner that he will be able to use the information without having to read the report. For the reader working on this or a related topic, the information article should facilitate the decision whether he needs to read the report, or not.88 With regard to the structure of the contents, the stan- dard provides as follows: "The information article must first briefly describe the status at the point of departure and indicate whether the possibility exists of a modi- fication in a particular direction. Thereupon the path chosen for the ' modification (method) should be outlined. It is sufficient to indicate the point of departure, assumptions, and the result, of mathematical deriva- tions or of experimental arrangements, stipulations and results. Instruc- tive illustrations should be used in presenting the technical and tech- nological conclusions derived therefrom. The article should end with a discussion of the results achieved and an outline of the new perspectives or possibilities of application, taking into account the economic as- pects." 8 9 It is not surprising, given the extent of the preliminary work carried out by Verlag Technik, that of the eleven journals which had introduced the deposit system up to 1970,90 more than half, six to be precise, have been published by this publishing house. For a number of reasons it is impossible to discuss here the details of the publishing practices. Suffice it to point out that in the journals in question, only isolated information articles have appeared at a time,91 although an increase in their number is generally being contemplated, in the Verlag Technik alone to up to 60% of the total contents of the journals.92 The average rate of demand per deposit report, according to Freytag,93 was below ten. The practice of the verious publishing houses regarding the storage of deposit reports, and their distribution, differed widely. This holds true both for the place of storage, and the method of deposit and of distribution. Thus, in some instances, reports marked for deposit were stored simply in the editorial offices of the journal,94 in other cases in the offices of the publishers,95 or the information and documentation desk responsible for the given field of specialization.96 Here again, the most advanced were the practices of the Yerlag Technik which, from 1969 on, used the facilities of the German State Library in Berlin (-East), for deposit as well as for distribution.97 The dissemination of the reports was effected part- ly on microfilm or by means of reprography, but also with the aid of hecto- graphy and photoprinting. In one case, deposit reports were simply stored on book shelves.98 Finally, it should be noted that there were significant dif- ferences also in the treatment of the various publishing houses of the ques- tion of royalties. Verlag Technik, for instance, paid honorariums in the form</p>
<p>16 of a lump sum (covering the information article and the deposit report), the amount of which varied with the size of the report but could, in fact, be lower than the usual remuneration based upon the total number of pages.99 The publishing house Bauwesen ("Building Industry") paid double the usual amount per page provided for in official tariffs, for information articles, but it paid nothing for the deposit report.! 00 The journal Eisenbahnpraxis ("Rail- way Practice"), published by the Transpressverlag publishing house, paid the customary fees per page for the information article, but only 50%for the de- posit report, under the same tariff.101 Despite this relatively favorable treat- ment of authors in solving the question of remuneration, the authors them- selves have generally responded to the new system with little enthusiasm. The prospect that their contributions might end up as deposit reports did, how- ever, have the salutary effect of forcing the authors to send in shorter contributions without detriment to quality: a quite positive side effect of the new system, as far as the publishing houses were concerned. 0:2 2 While originally the principal reasons used to justify the setting up of the experimental deposit system in the GDR included the wish to ensure better mastery over the explosive growth of scientific literature, and concern over the excessively high waste factor (number of unsold copies) which was said to have reached 85% to 90%, it appears that gradually the goals and purposes of this system have undergone a change. According to Freytag,i o3 the need for introduction of the deposit system is primarily the result of the exceedingly low level of useful intelligibility of the information contained in conventional periodicals, while the waste factor, which Freytag estimates at only 10%to 20%, is in his opinion of a purely secondary significance. He views the in- sufficient useful intelligibility as resulting, on the one hand, from the need of the select few for a most specialized treatment of a given topic, and, on the other hand, the need by many to acquire knowledge of the result of research in almost all branches of science. These different needs may be reconciled and well served by the information article and the deposit report, considered as two complementary and mutually dependent source categories, in other words, as a system.' 04 Whenever, in the preparation of the information article, the specifications of the Verlag Technik, reproduced in part further above, have been fully ob- served, there seems to be little doubt that the article qualifies as a "work" within the meaning of Sec.4, para 1 URG; in other words, that it represents an "adaptation" of the deposit report.105 The required individual creative input consists in the act of selection of the principal findings of the deposit report to be, in turn, reincorporated and compressed into the short informa- tion article which would make it, as a rule, unnecessary for the less in- terested reader to peruse the original report. In this special ability required of the information article, lies also one of the principal differences in the GDR between an information article and a Referat (abstract, brief summary; hereinafter cited: reference report), which has never been intended to serve, as a rule, as a reader's substitute for the original document.l 06 In con- clusion, one may pose a particularly challenging question: Is the information</p>
<p>17 article always to be considered a derivative document, or can it be an origi- nal document as well? No unequivocal answer has thus far been given to this question in the GDR. Frey tag 1 07 clearly favors recognizing both works as independent, provided each work has fully met the required specifications and the author is the same person in both cases. When the authors are not the same, GDR jurisprudence appears to be consistent in treating the author of the information article as an adapter of the deposit report. i o 8 4.4. Abstracts, thesauri, etc. After this discussion of the information article there still remains to briefly consider the question of the copyrightability of the reference report. In con- trast to the information article which, as a rule, is intended to serve as a substitute for reading the original, still unpublished document, and to draw attention to its potential publication by means of making available photocopies and the like,! 09 the reference report reproduces, in the form of a short summary, the essential contents of already published scientific, technical or literary works. 11 o After an initial reluctance,!!1 i GDR jurists are now willing to admit the possibility of analysing even abstracts and synopses (Referate) as adaptations, in other words as copyrightable "works".l12 According to Muller and Thieme, the individual creative input consists, in such cases, in the representation of the analysis of the referenced work in a succinct and meaningful form, "which avoids all redundancy in relation to the referenced work and highlights the essentials in such a way as to facilitate, or even make superfluous, a decision on the reader's part, whether he needs the ' referenced work for a given project..."1 I 1 3 When an abstract consists merely of "written remarks concerning the con- tents of a work, with a view to broadening, or increasing the significance of, the information provided in the title itself ',114 one no longer speaks of a reference report but an annotation which, typically, no longer possesses the characteristics of a copyrightable "work", despite the fluid boundaries which exist between the annotation and the reference report.i 1 s This distinction, of course, is of secondary importance in the context of the present discussion, since, as will be shown further below in greater detail, the provisions of Sec.24 URG, cited supra, relating to "free utilization" of copyrighted works for purposes of information, permit also the publication of reference reports which do constitute objects of copyright. It is impossible to discuss here further details of the copyright protection of works of science. Suffice it to mention only that in the legal literature of the GDR, thesauri, concordances, and various classification systems are also regarded as being, in principle, capable of qualifying for copyright protec- tion.l16 Finally, in the opinion of GDR jurists, copyright protection under Sec.4, para 2 URG, according to which copyright also subsists in collective works, compilations and anthologies, to the extent to which they are the result, in their form and selection, of individual creative activity, could</p>
<p>18 probably be extended even to data banks, bibliographies and surveys of literature in which a selection has been made either by subject or according to some other rating criteria, or which show an individual creative input in the arrangement of entries. 117 7 The favorable attitute towards authors which characterizes GDR juris- prudence, culminates in the view according to which computer programs may also be considered works of science within the meaning of Sec.2, para 1 URG, unless they constitute mere programming routines incapable of individual creative make-up. 118 8 5. The Right of First Publication and Attendant Exploitation Rights S.l. The right of dissemination and publication Under Section 15 URG, the author is granted the extremely important right to decide about the publication of his work and about the first disclosure to the public of the substance of its contents. A work is deemed to be disseminated (ver5ffentlicht), according to Sec.12, first sentence URG, as soon as it has been publicly recited, performed on stage or otherwise broadcast or telecast, displayed, or in any other manner put into circulation, or has appeared (erschienen), with the consent of the copyright holder. By analogy with Sec.6, para 2 of the Copyright Law of the German Federal Republic, Sec.12, second sentence URG considers a work as published (4e. erschienen stricto sensu as opposed to veröffentlicht), when it has been brought into circulation with the author's consent, in a sufficient number of copies. Although the problems inherent in the broader or the narrower definition of "dissemination/publication" (Ver6ffentlichung; Erscheinen) are of concern to us only to the extent to which they are directly relevant to the special ques- tions of information and documentation, it should, nevertheless, be pointed out that according to the socialist concept of copyright prevalent in the GDR, even the author's right of first publication presents itself in practice only as a right to prohibit certain actions. While the author does have the incontest- able right to decide whether he wishes to have his work published, the deci- sion whether his work can, in fact, be published, is not his to make. For, this decision is not taken by the copyright holder, "but the cultural organi- zation to which the author has transferred the work for purposes of publi- cation." 1 i 9 Dissemination and publication have far-reaching legal consequences for the subsequent vicissitudes of the work, particularly also in the domain of free utilization which are discussed further below. In the present context, only the special problems relating to dissemination and publication in the operations of the deposit system are to be touched upon, and more particularly, an at- tempt is to be made to answer the question whether and when the deposit report, in combination with the information article, is to be considered pub- lished within the meaning of either disseminated (ver6ffentlicht) or/and pub- lished (erschienen).</p>
<p>19 In legal literature of the GDR there is unanimity on the point that dis- semination (Verdffentlichung) of the information article requires the consent of the author of the deposit report, inasmuch as the information article is a dependent adaptation within the meaning of Sec.18, para 3 URG. Since the deposit reports are, in the majority of cases, offered to the periodicals for publication initially as ordinary articles, these periodicals must, if they propose to have recourse to the combination of deposit report plus information article, obtain the author's consent for both.l2o But there are some dif- ferences of opinion on whether, as the result of the dissemination of the information article in a periodical, since it happens to represent also the publication stricto sensu (Erscheinen) of an "adaptation",12 i the deposit report itself should not be considered "published", either in the broad sense of disseminated (veröffentlicht), or even in the narrower meaning of erschie- nen. Püschell 2 2 proceeds from the premise that whenever the deposit system is fully operational, i.e, the deposited material is readily accessible and adequate reprographic technology is available to the depositary to permit reproduction and distribution of a sufficient number of copies of the deposit report, at a suitable level of quality, the dissemination (Verdffentlichung) and publication (Erscheinen) of the information article entails also the dissemina- tion (within the meaning of Sec.12, first sentence, URG) of the deposit report, under the category: "disseminated by some other method".123 Freytag,124 too, following Munzerl2s in whose opinion the conditions for "bringing into circulation", required in the case of "publication" stricto sensu (Erscheinen) pursuant to Sec.12, second sentence, URG, are fulfilled "if the work is available for general trade in a commercial distribution organization", considers all the elements constituting "publication" of the deposit report, in the meaning of erschienen, as present, provided that, as Pilschel had already assumed, the deposit system is fully operational which, in Freytag's view, presupposes the existence of a central depositary. These differences in answering the question whether the dissemination (Ver6ffentlichung) or publication (Erscheinen) causes the deposit report to be also considered as published (in either meaning), can have practical consequences: For, the free reproduction for purposes of information and documentation, within the meaning of Sec.24 URG, is allowed only when a work has been published (erschienen) in the sense of distribution of copies, not, however, when it has been disseminated (ver6ffentlicht). Because of the special scientific importance of dissertations, post-doctoral habilitation theses, and research and development reports, and of the ensuing need for their duplication, especially for personal and professional use, the question of their publication must also be briefly touched upon. According to MiiUer, 12 6 the opinion appears to have prevailed in the GDR that such works are to be regarded as published (erschienen) "by some other method", pro- vided that these works have been made available in a sufficient number of copies to the appropriate university library. 1 7</p>
<p>20 5.2. The right of reproduction and of distribution . Among the exploitation rights to a work which belong exclusively to the author, Sec.18, para l(a) mentions, in the first place, the right of the author to decide whether his work is to be reproduced or recorded. The law does not give a closer definition of what it means by reproduction or re- cording. Even in legal literature, these questions have remained largely neglected, principally perhaps because of the peculiarities of the concept of "socialist personality rights" prevailing in the GDR, according to which even the author's right of reproduction is, in the fmal analysis, purely a right to prohibit an action by others.128 Even here, the exploitation right, pursuant to Sec. 19, para 1 URG, is confined solely to enabling the author to transfer his work for use by others, i.e. in accordance with the provisions of the law on authors' contracts, by the cultural organizations of the State, and to demand the corresponding remuneration "in accordance with the socialist principle of work performed" (Sec.19, para 2 URG), i.e. payment of sums according to tariffs that are obligatory for all (Sec. 19, para 3 URG). But one may no doubt safely assume that in the GDR, too, the concept of repro- duction encompasses the making of any type of copies, regardless of the method used for the reproduction, and regardless also of the number of copies produced. 12 "Recording", within the meaning of the URG, is , accord- ing to Thieme,l3o "the embodiment in a lasting tangible medium (writing, phonorecord, etc.)". In the language of scientific information in the GDR, this includes all operations known under the descriptive name of "Dokumental- machen" ("documentalization"). This is why, said Thieme, the author's con- sent is necessary even for the recording on phonograms of extemporaneous performances. 1 3 1 Infringement of the author's right of reproduction takes place the moment that copies of the original work are being made, i.e, al- ready at the "preliminary stage of publication",13 a as long as the author's consent has not been secured and no "free utilization" or legal licenses are involved in the particular instance. It is difficult to say unequivocally whether, in the case of electronic data processing equipment, an infringement already occurs at the input stage, since, as far as one is able to judge, this question has not yet been addressed in the GDR The author has also the exclusive right, pursuant to Sec. 18, para 1 (b), to decide whether his work is to be disseminated for "gainful purposes" (zu Erweszwecken). This right, which is independent of the right of reproduc- tion, consists in the distribution of copies against which the author, armed with the right of reproduction alone, would not always be able to defend himself. Section 18, para 1 (b) URG does not make every distribution depen- dent upon the consent of the author, but only the distribution for gainful purposes, i.e, as a rule, one effected with a profit motive. Section 18, para 2 URG provides, however, for one additional significant restriction upon the author's right of dissemination: the latter is not infring- ed either by the compensated or the uncompensated lending out of a work which has already been put into circulation. In other words, the right is exhausted as the result of initially putting into circulation the work autho- rized by the author. 3 3 3</p>
<p>21 6. Free Utilization of a Work ' 6.1. General Remarks In the GDR, too, the most important cause for permitting the free use of a work continues to be the expiration of the period of copyright protection. This question does not require further treatment here, except for the ob- servation that the GDR adheres, in this respect, to the generally accepted international rule. Sec. 22 URG provides for a period of protection of 50 years after the author's death and for the internationally just as familiar modalities of protection of anonymous works and works issued by juristic persons. The duration of protection for related rights (Leistungsschutz- rechte), according to Sec. 82 URG, is ten years, commencing with the per- formance or the publication.134 An exception is provided for, under Sec. 84 URG, for the protection of titles of works which, as has already been shown earlier,! 3 remains in effect for the entire duration of protection of the work itself (Sec. 85 URG). In the context which is of interest to us here, a considerably greater im- portance than the duration of the period of protection attaches to the "free utilization" of a work, permitted under Sections 21 through 31 URG.136 It represents the most explicit realization of the principles enunciated in the Preamble and in Sec. 1 of the URG. Pursuant to Sec. 21, para 1 URG, the free utilization of works is permitted in accordance with the rules laid down in the chapter of the URG dealing with such free utilization, without the consent of the author and, as a rule, 13 7 also without payment to him of any remuneration, "for the purpose of acquisition by society at large, of trea- sures of art and of knowledge, and for the development of science and of art". Based upon the premise of "an objective correspondence of the interests of the community to those of its authors in the developments of artistic crea- tion and in its wide diffusion", GDR doctrine does not regard the provisions on free utilization of a work as a limitation of the subjective copyright, i.e. as norms aimed at a balancing by statute of the respective interests of authors and of society. Rather, free utilization is conceived of as an organic component of "the overall system of society's participation in contemporary works of literature, art, and science",138 as "the other side" of objective copyright: its social content.! 3 This conception explains also why GDR doctrine is generally opposed to a narrow interpretation of the relevant norms, in favor of the authors.140 It should also be noted that to the extent to which the rules on free uses permit the unrestricted reproduction of a work,141 they apply also to distribution, public performance, public viewing, and public recital (Sec. 21, para 2 URG). Following GDR doctrine,14 2 one may divide the URG rules on free utilization of a work into three major categories, albeit with frequently fluid borderlines: - The cases of reproduction for personal or professional use, listed in Sec. 23, and likewise instances of quotations and collections, dealt with in Sec. 26, were designed to serve the instructional needs of the citizens, by helping</p>
<p>22 them to raise their level of competence in respect to their personal artistic or scientific projects. - Sections 24, 29, 30 and 32143 are to help satisfy society's informational needs concerning developments in the fields of creative scientific and artistic activity, and likewise the daily news and cultural or social events. - Finally, Sections 25, 27 and 31 regulate free utilization of works in order to facilitate the practice of art. In our further discussion, we shall disregard the last category, since it raises no questions relevant to the present enquiry. Nor is there any need to be concerned with the "free utilization" provided for in Sec. 22 URG which permits, on a general basis, the use of a work, if it is to be used for the creation of a new work, constituting an individual creative achievement.144 All instances of free utilization of a work, provided for in the URG, have this in common that they must not result in violation of the author's person- ality. On the one hand, they all apply only to already published works; on the other hand, everybody who uses someone else's work pursuant to the provisions of Section 24 through 27 URG, must, according to Sec. 28 para 1 URG, indicate his sources. Furthermore, no changes may be introduced into the work that is subject to free use. Nor may the work be used, within the scope of the free-utilization rules, in such a way as to damage the artistic or scientific reputation of the author. In other words, the provisions of Sec. 14, para 2; 16 and 17, URG apply even in this case. 6.2. Reproduction for personal and professional use By way of a preface to the analysis of the rules now in force (Sec. 23 URG) relating to reproduction for personal and professional use, which exclude any obligatory compensation in this domain, one should mention that even in the GDR, at least in the early 1950s, quite serious debates have taken place on whether one should not institute payments of fees at least for phonogram recordings even when the recording was made for personal use.145 As far as the reproduction of scientific works by means of modem techniques is con- cerned, such as photocopying, microcopying and xerography, there was an understandable tendency in the GDR early on, to draw more narrowly the borderlines within which an author could assert his exclusive right of repro- duction. The lines were said to lie "where the exclusive right begins typically to impede scientific production and the necessary corresponding documentation and rationalization, and therefore also to damage the author-scientist him- self'.146 Satisfaction of the needs thus defined was to be considered an aspect of "personal use". A scientist who makes use of such modem processes is deemed in violation of neither copyright nor publishers' interests, inasmuch as he is not giving up the use of journals and periodicals, but is rather replacing a complicated method of collecting his information, e.g. by making extracts, etc., which otherwise he would have been forced to employ, by preparing and collecting photocopies,147 The judicial doctrine of the Federal Republic of Germany (BGH)148 relating to "personal use" has likewise been</p>
<p>23 rejected on grounds that it would perforce have led to an unjustified dif- ference in the assessment of industrial and academic research, respectively. "Personal use" was said to be primarily that "which is, and must be, effected by the scientist and the specialist who wishes to apply modem methods of literature retrieval, of documentation and rationalization, for his personal scientific work".149 To be sure, warnings were voiced, even then, against possible abuses: The recourse to reproducing systems was not supposed to lead to a reduction in subscriptions to primary literature, nor to jeopardize the press runs of scientific journals and periodicals. 1 o At the present time, the URG, in its Section 23, first sentence, considers lawful every reproduction of a published work, regardless of the method used, provided that it is effected in a personal or professional interest and the reproduced copy is not released to the public.151 1 It is thus clearly understood that all known as well as the still unknown techniques and pro- cesses of reproduction are potentially covered by the expression "regardless of the method used", and the law imposes no restrictions in this regard.152 2 By contrast, permission to reproduce is made dependent, first of all, on whether the work to be reproduced has already been published. As a result, deposit reports which do not meet the requirements spelled out supral S3 may not be reproduced for personal use on the sole basis of Sec.23 URG, but only with the consent of the author, is 4 The reproduction of dissertations and of diploma reports may also prove to be controversial in some cases.155 5 It ap- pears to be still unclear in the GDR, in spite of the great practical signifi- cance of the question, whether the concept of "reproduction", as used in Sec.23 URG, encompassed also the "recording", which is referred to in Sec.18 para l(a) URG, separately but side by side with "reproduction".! S6 6 In determining the standards of admissibility for the free reproduction of published works, Sec.23 URG requires first of all that such reproductions must have been made in satisfaction of a personal or professional interest. The scope of free uses of a work was thus deliberately extended in the URG to include "reproduction for professional use" is 7 which, it is true, overlaps the "reproduction for personal use" but, nevertheless, goes beyond it.15 5 8 In the predominant view in GDR jurisprudence, the assumption is made that "personal interest", within the meaning of Sec.23 URG, is not confined to the person engaged in reproducting, but, as a rule, covers also the making and use of copies within the circle of a family and close friends. "Professional interest", on the other hand, extends the scope of authorized free uses even further, into the field of immediate professional activity, is 9 There is con- . sensus in the GDR also on the proposition that not only physical persons but, in principle, also scientific and cultural institutions may invoke the rules relating to personal or professional use of copies of reproduced works.16 0 Sec.23 URG is silent on whether the authorized reproduction must be carried out by the qualified user himself, or may be arranged for by third persons as well. Opinions are overwhelmingly in favor of recognizing the possibility of reproduction for personal or professional use even where it is effected by third parties, particularly by libraries or other documentation</p>
<p>24 centers. This remains true even in cases where a fee is levied by such third parties for making the copies, if the fee represents compensation for services rendered by the establishment in question, and no profit is derived from the use of the copyrighted work.161 1 In legal literature, the suggestion was made in this connection that documentation centers and libraries require in each case an assurance from the client that the copies will be used by him only for his personal or professional use. In the German State Library (Deutsche Staatsbibliothek), such practice has indeed been institutionalized through the use of appropriate printed forms.162 2 Sec.23 URG gives no direct answer to the question how many copies may be made for personal or professional use. The permissible amount of copies is determined by the personal or professional needs of the user of the work. As a rule, one copy should be sufficient to satisfy these needs. Only in excep- tional cases should the reproduction of a few additional copies be still allow- ed.163 In any event, the limit of what is allowed is surely exceeded whenever spare copies are being made for potential future users, still unidentified at the present time. Such copying is no longer covered by the provisions of Sec.23 URG.164 A further condition of eligibility, provided for in Sec.23 URG for the reproduction of a work for personal or professional use, consists in the obligation not to transmit copies to the public. Comments made in legal litera- ture on the subject of this requirement are very sparse and only permit the conclusion that this provision is aimed solely at commercial distribution,l6s 5 e.g. the book trade, in other words the elimination of operations in which the immediate object is the realization of profits.166 No valid statements can be made at this time regarding this criterion. The permissible reproduction for personal or professional use is not, for the time being, regarded in the GDR as a serious threat to primary litera- ture, in particular to the circulation of scientific periodicals, although a potential threat is not being dismissed out of hand. 16 7 But, however accurate such assessments, made in the GDR, may or may not be in regard to the publishing industry in that State, they are surely not entirely applicable to publishers of scientific periodicals abroad. Since 1969, there exists a special department within the German State Library in Berlin, initially staffed with 30 employees, which has taken over the task of supplying enterprises and in- stitutions with photocopies of scientific articles appearing in foreign periodi- cals, primarily in order to save hard currency. This department sends out photocopies of the tables of contents of 650 foreign periodicals to its sub- scribers (there were 2,500 in 1969), followed up by the despatch of micro- copies or Xerox copies of the articles ordered by interested parties.l 6 8 In the legal literature of the GDR, such practice is considered as falling within the purview of Sec.23 URG.16 9</p>
<p>25 6..3. Excerpts and compilations It is not possible to discuss here the details of the rules laid down in Sec.26 URG which govern quotations and excerpts, as well as the incorporation of copyrighted works in collections, which, like works reproduced for personal or professional use, serve to improve the level of one's own competence, particularly in the case of users of scientific works who are engaged in scientific activities of their own. Suffice it to point out merely that in the system established by the URG, the admissibility of both, the "quotation" (Kleinzitat), i.e. the rendering of individual passages or reproduction of small excerpts from literary or musical works after their dissemination (Ver6ffentlichnung), and the Grosszitat, i.e. the incorporation of individual small articles or entire small musical compositions after their publication stricto sensu (Erscheinen), is made dependent on the originality of the work of the person using the Kleinzitat or the Grosszitat. In the case of a Grosszitat, the work of the person using it must be a genuine scientific work, and the incorporation in it of works of others must have been effected for the purpose of making more intelligible the contents of his own work (Sec.26(a)(b) URG).17o Section 26(c) and (e) URG provides for two exceptions, of a particular interest in the present context, to the fundamental requirement of the authors' consent to the use of their works in compilations, particularly in anthologies. According to Sec.26(e) URG, individual shorter articles, single poems, modest-size segments of a literary text, or shorter musical composi- tions, may be included in a collection if they have been previously published (Erscheinen), provided that the collection is destined for teaching or school use and includes the works of a much greater number of writers or com- posers. In legal literature, M6nch and Gusts 71 have in this connection raised the question whether the provisions of Sec.26(e) URG may be applied also to gramophone records intended for instruction or school use, and on which complete poems, stories or compositions of a larger number of authors have been recorded. While there is no doubt in the opinion of manufacturers of such gramophone records that the protection of Sec.26(e) URG does extend to the practice of including short excerpts of individual works, whereas in all other cases they do seek the consent of the copyright holder and also pay royalties, 17 2 Monch and Gust maintain that this norm does, in fact, apply by analogy also to the so-called Schola-records (educational records). Such an application, they claim, corresponds fully to the nature and purpose of the legal institution of "free utilization" of a work in socialist copyright law.173 The provision of Sec.26(c) URG, according to which the inclusion of single poems or of shorter musical compositions into a collection is permitted, after their publication (Erscheinen), without the author's consent in cases where the collection contains also the works of several other writers or composers, and is intended for artistic recitals or recitations, is mentioned here express- ly only because this particular "free utilization", pursuant to Sec.21 para 1 URG, is subject to payment of royalties [compulsory license - Transl.].</p>
<p>26 6.4. Reproduction for purposes of information and documentation The adoption by the GDR of explicit norms about "reproduction for purposes of information and documentation" was motivated by the realization that, on the one hand, the abundance of scientific and technical publications could be made available and useful to the general public only with the aid of well- functioning information- and documentation centers, while, on the other hand, the activity of these centers represented, in terms of copyright law, a "use of the works", inasmuch as it involved systematic measures and facilities for the processing, condensation and retrieval of technical data,174 in other words was to be regarded as an adaptation of pre-existing materials and data that were extraneous to, and independent of, the adaptation itself. 175 Such a classification seems logical and is quite consistent with the principles, func- tions, and tasks of the URG as they have been explained further above.176 Thiemel 7 is therefore probably right when he sees in this legislative measure "a fundamental and deliberate alignment of information and documentation activities to the major goals of copyright law". Within the framework of the provisions on "duplication for purposes of in- formation and documentation" (Sec.24 URG) one may, following Thieme,i78 8 distinguish the following elements: (a) Freedom of reporting for reference purposes ' For purposes of information, it is permissible, according to Sec.24, para 1, first sentence, URG, to make public (veröffen, tlichen) in a brief summary, the essence of the contents of published scientific, technical or literary works. The concept of the reference report (Referat) and its possible sub- suming under the concept of adaptation (arrangement), have already been analyzed in some detail. The provision of Sec.24, para 1, first sentence, URG, was therefore necessary as a guarantee of the smooth functioning of information and documentation centers. But, even that provision does not permit just any kind of "reporting" whatsoever. It must be carried out for purposes of information and be confined to the essentials of the contents of already published works. While the qualification: "for information purposes" presents no difficulties of interpretation, there are some difficulties connected with the interpretation of the terms "published works" (erschienene Werke) within the meaning of Sec.24, para 1, first sentence, URG. PuscheP79 and Freytagl8o merely repeat, in their own analysis of Sec.24 URG, the statutory terms: "published works". Muller and Thieme,181 on the other hand, take _ expressly an exception to this expression. In their opinion, the concept of a "published" (erschienen) work, employed in Sec.24, para 1, first sentence, URG, cannot surely be identical with that used in Sec.12, second sentence, URG. If one were to require that even here, only those works may be re- ported on which had been placed into circulation, with the author's consent, in a sufficient number of copies, such requirement would hardly be compatible with the meaning and purpose of the freedom of reporting for reference pur- poses, nor with the interests of the authors whose understandable wish is to be known and read. Muller and Thieme therefore believe that one should assume,</p>
<p>27 "without doing violence to the statutory language and in conformity with the law's intent to effectively serve the needs of scientific information, that the purpose and context of the statutory norm command .. the conclusion that not only works published stricto sensu (erschienene), but also those disseminated (veröffentlichte) may be reported on (referiert)." 1 2 2 Inasmuch as the reference reports (Referate), as has already been shown, may also constitute adaptations (arrangements), the question arises to what extent Sec.24, para 1, first sentence, URG, may be compatible with Article 12 of the Revised Beme Convention (Paris Revision). According to the official German translation of the latter, the authors of works of literature or of art enjoy the exclusive right to authorize adaptation (Bearbeitungen), arrange- ments (Arrangements), and other alterations (Umarbeitungen) of their works. In re-examining this question, the conclusion has been reached in the GDR183 that the official translation used in the German Federal Republic, which had rendered the French term adaptation as Bearbeitung, could not stand up to a closer scrutiny. It was claimed that, in its French meaning, an "adaptation" could only mean "an alteration [anpassende Bearbeitung], in which the object . of the alteration, i.e, the pre-existing work, is taken over in its entire substance and only its embodiment (Darstellung) is changed in view of a specific purpose, and in order to take the place of the original work for this particular purpose".1 a4 This definition cannot be said to apply to reporting for reference purposes, for - so the argument goes - the latter (i. e. , the Referat) constitutes merely the communication of information about the work and not "its alteration in view of a particular purpose".185 Thieme therefore strongly recommends that the old term Adaptation, used in the German translation of the Brussels Revision of the Berne Convention, be reintroduced in the official GDR translation of the Revised Berne Convention, in lieu of Bearbeitung, or that the term be possibly replaced by the paraphrase: "alteration through adaptation, rearrangement, or by other means" (an- passende, arrangierende oder sonstige Umarbeitung). Such a translation of Art.12 of the Revised Beme Convention (Paris Revision) would, in Thieme's opinion, prove to be no obstacle to the application of Sec.24, para 1, first sentence, URG to works of authors - members of the Beme Convention. 186 (b) Special rules relating to borrowings A separate set of rules is provided for in Sec.24, para 1, second sentence, URG for borrowings (quotations and text illustrations) from the works re- ported on, to be used in reference reports. According to this norm, autho- rized reference reports as defined in the first sentence of Sec.24, para 1, URG, may contain quotations and text illustrations in the form of individual . formulations and shorter passages from the original text, as well as individual Figures, Tables, and other appendices. Although the Kleinzitat ("quotation"; see supra) is already the object of regulation in Sec.26(a) URG, it has no doubt been deemed advisable to enact separate rules in Sec.24, para 1, URG, for the specific benefit of information and documentation. For in the pre- dominant view of GDR jurisprudence, 18 7 borrowings from protected works may</p>
<p>28 be considered permissible under Sec.26(a) URG only when they are "neg- . ligible both in size and in relation to the borrower's own contribution".1 18 8 This requirement, however, cannot, as a rule, be met in borrowings in view of reference reporting. In this latter instance (i.e. Referate), the extent of the reporter's own contribution will more frequently be less significant than the size of the borrowing.1 89 (c)The right of reproduction and (limited) distribution in reporting for reference purposes (Referatwesen) Sec.24, para 2 URG provides that brief summaries (abstracts) of scientific, technical, and literary works, which have been published by documentation services, reference organs, in bibliographies, etc.,190 may be reproduced by other appropriate publications for the information of a wide circle of interest- ed persons, but not for purposes of advertising or profit. This rule acquires significance normally only in cases where ther reference reports (Referate) are objects of a derivative copyright, as adaptations. A first condition for permissible reproduction in such cases requires that the publications from which the reference reports are to be copied be of the kind in which the reproduction of reference reports constitutes the publication's main purpose as well as its principal contents. This condition is not met by such publica- tions as, for instance, journals and reviews which carry abstracts as one element of their contents, nor periodicals in which information articles are published.191 The reproduction must have been effected solely for the pur- pose of informing a wide circle of interested parties; in other words, it must have served the satisfaction of society's need to know.192 It may not be used as a means to advertise the publication in which the abstract had been re- printed, nor to achieve profit. In the view of leading authorities, there is an unauthorized reproduction for profit even in cases where the distribution of the printed organ in which the abstract has been reprinted, takes place at a profits. 193 3 (d) The right of documentation centers to reproduce and distribute Sec.24, para 3 URG, in conjunction with Sec.24, para 4 URG, established a special right of duplication and of (limited) dissemination belonging to docu- mentation centers in respect to scientific, technical, and literary publications, subject to the duty to pay royalties. In accordance with these provisions, the documentation centers are permitted to reproduce, as part of their docu- mentation, reference and bibliographical services, articles, essays, Figures, Tables, drawings and other published matter of a scientific, technical or literary nature, from newspapers or journals, in part or in their entirety, in the original or in translation, for the information of their users. This ex- cludes the reproduction and dissemination for general information. For all practical purposes, the right of reproduction provided for in Sec.24, para 3 URG is limited to documentation centers in plants, management units, and central offices for in-plant information.1 94 As far as the objects of the special right of reproduction and distribution, defined in very general terms in Sec.23, para 3 URG, are concerned, Muller and Thieme 19 s are of the opinion that not only primary, but also secondary sources should be included among</p>
<p>29 the categories of works previously enumerated, thus in particular also the reference reports and the so-called "information article", as described in greater detail further above. Sec.24, para 3 URG appears to permit their reproduction possibly even where the prerequisites for the application of Sec.24, para 3 URG are absent. It should also be pointed out that Sec.24, para 3 URG permits expressly the reproduction also of translations 1 96 with the consequence that even unauthorized translations may be reproduced, and distributed within certain limits, provided that the conditions spelled out in that norm have been met.197 The obligation, provided for in Sec.24, para 4 URG, to pay royalties for the use of a work pursuant to Sec.24, para 3 URG, which arises, of course, only where this use is not already covered under some other provision, such as, for instance, Sec.24, para 2 URG, is general- ly analyzed as an instance of legal licenses. 9s 8 (e) Other concessions to documentation A further concession to the needs of documentation is made in Sec.29, para 2 URG. In derogation from Sec.29, para 1 URG, which permits the reprinting of individual newspaper articles in other newspapers in cases where the rights to such articles have not been reserved, Sec.29, para 2 URG states that the reprinting from newspapers and journals of feature articles on scien- tific, technical or entertainment topics is not permitted without the consent of the authorized person even where no rights have been reserved. But, an exception is then made to this exception, in the sense that the reprinting even of. such feature articles is permitted, if it is carried out "in view of satisfying the needs of documentation that are recognized by the present statute". The provisions of Sec.29, para 2 URG, overlap only in part the provisions of Sec.24, para 3 and 4 URG. They are both broader and narrower, in res- pect to the publications from which the borrowings may be made, as well as to those in which the reprinting may be effected.199 In GDR legal literature, the reference, in Sec.29, para 2 URG, to the "needs of documentation" recognized by the URG, is generally interpreted as meaning that "the ren- dering of contributions exempt from the general right of reprinting as provided for in Sec.29, para 1 URG is permitted only to documentation centers for purposes of informing their users, and subject to the obligatory observance of the conditions provided for in Sec.24, para 3 and 4 URG",200 i.e, whenever appropriate, the payment of royalties.zol 1 6.5. Reproduction of speeches and lectures; legal licenses Two additional categories of "free utilization" or "legal licenses" remain to be discussed within the context of the present enquiry: Sec.30, para 1 URG takes into account the general need to provide for the smoothest possible flow of information touching upon newsworthy daily events. According to this norm, speeches and lectures, as well as their transcripts, may be reproduced, provided that such speeches and lectures had been delivered at social functions or within the scope of public activities of the</p>
<p>30 organs of the State. Publication in book form, including in compilations, does not fall within the reach of this free use. These rules extend, among others, to speeches and lectures given at open meetings and events organized by the parties and mass organizations of the GDR, but likewise to the pleadings and summations of defense counsels and prosecutors. By contrast, speeches and lectures given at scientific gatherings (Sec.30, para 2 URG) are expressly exempted from these rules. Inasmuch as the public has also an interest in being informed, regularly and in detail, about events in the intellectual and cultural spheres, the radio stations, television networks, nationalized film studios and the press are authorized to broadcast or telecast, perform, reproduce or photograph pub- lished (veröffentlichte) works without the consent of the copyright holder, and without payment of royalties. The only condition is that the works, or parts of works, be broadcast, telecast, performed or reproduced in view of public information, within the framework of reports about daily events (Sec.32, para 1 URG). A final remark concerns Section 32, para 2 URG, which permits the radio stations and television networks to transmit any published work in an un- changed form without the author's consent, provided that the author is paid royalties in accordance with tariffs established by the State. The author's name must also be indicated in the usual manner. It is further of significance that para 3 of Section 32 URG does not confine legal licenses to transmitting, performing, reprinting, and photographing, as provided for in the preceding paragraphs, but extends them still further, to recording and reproduction.2oz 2 6.6 Applicability to related rights (leis tungsschu tzrech te) Without discussing here in any greater detail the related rights (Leistungs- schutzrechte) that are the object of regulation in the URG, suffice it to refer to Sec.83 URG. It stipulates that the provisions on "free utilization" of Sec- tions 22, through 24, and Sec.26, as well as those of Sec.32 which relates to legal licenses, apply in an appropriate manner to rights for the protection of performances (Leistungsschutzrechte). 7. Summary One may conclude this survey with the statement that the copyright law of the GDR has, no doubt, devised a number of solution in part entirely new, to the problem which was of interest to us here, namely the assessment in terms of copyright law of novel methods and techniques relating to information and documentation. But not even the URG was capable of harnessing all the problems which even now are awaiting a resolution, nor, indeed, of antici- pating answers to those questions which are likely to confront us in the not too distant future. The stated goals of the copyright system of the GDR, which have been presented here in some detail, show that the primary task assigned to the</p>
<p>31 URG is to foster conditions which, in the judgment of the State, will best ensure the creation of literary, artistic and scientific works corresponding to the expectations of the community. This broad overall context not only de- fines the contents of the so-called "socialist personality rights", but also facilitates the widest possible access to the entire cultural patrimony, as well as its use. The particular approach to the authors' "subjective copyright", used in the GDR, as a complex of 'socialist personality rights" whose property-rights- component is reduced, by and large, to injunctive relief and a claim to re- muneration over which the author has scarcely any influence at all, is in itself sufficient indication that the authors have little say about the use of their works after publication, especially since the facilities for reproduction and duplication, at least in those domains which are of interest to us here, are entirely in the hands of cultural institutions belonging to the State. Even so, in order to make certain that even the author's remaining subjective rights would not be exercised by him in contradiction to the stated goals of the copyright system ("objective copyright"), Sections 21 through 31, and Sec.32, URG, have expanded the scope of "free utilization" of the work and of statutory licenses far beyond the heretofore generally accepted limits. Particularly far-reaching are the provisions relating to reproduction for pur- poses of information and documentation (Sec.24 and Sec.29, para. 2 URG). The express extension, under Sec.23 URG, of the freedom to reproduce, from personal use to professional use as well, seems justified, since, espe- cially in the case of scientific works, it would be futile to attempt a satis- factory differentiation between personal and professional uses. It is only logical that a socialist State like the GDR should reject any obligation to pay royalties in this domain of "free utilization", especially where the use of scientific works is involved. It remains to be seen whether the provisions of Sec.23 URG will suffice as the only applicable norm, once reprographic copying has assumed the same dimensions in the GDR as in the West; one may, however, doubt it. The few anxious voices which have already been raised on the subject of the future of publishing in the GDR, seem to confirm this doubt. It has been shown that already now, foreign publishers can sell but a few subscriptions in the GDR, owing to the prevailing practices of reprographic copying. The GDR, in introducing the relatively well thought-out "deposit system", has quite possibly provided better for "the time after" (für die Zeit 'danach') than have many other countries. The GDR deposit system, described here in detail, may in fact represent a new version of this system, potentially capable of better satisfying the general and the special needs of the scientific com- munity, especially in the fields of narrow specialization, than the conventional specialized periodicals. If its standards are strictly enforced, and the dupli- cation and distribution of the so-called deposit reports runs smoothly and efficiently, this particular version of the deposit system could, in fact, bring about the lowering of production and distribution costs of the journals and reviews carrying the information articles, to a level where the reprographic</p>
<p>32 copying of information articles would no longer be practised to an extent capable of hurting the publishing trade. Those interested in more detailed information would have to order copies of the deposit reports from the pub- lishers, in any event. The GDR deposit system has, in comparison with the systems operating, for instance, in the USSR or in Czechoslovakia, or even in the West, the distinct advantage of causing less frustration to the authors. The specifications applicable to the information articles which, as a rule, are to be co-authored by the authors of the deposit reports, leave just enough space for the authors to allow them to embody their creative input in an original ("individual") presentation. The length of the deposit reports them- selves offers, of course, far better opportunities of expression than the tra- ditional periodicals. Also of note are the amendments relating to reproduction for purposes of information and documentation, introduced in Sec.24 and 29 URG. The modem scientific world is no longer imaginable without a multitude of professional abstracting and in-house information services. After having weighed all the interests involved, it appears indeed desirable that even this particular category of "utilization" of a work be subject to appropriate statutory norms, thereby eliminating the uncertainties which crop up at every step. But, as has also been noted, even the URG of the GDR was unable to devise un- equivocal rules and provide clear answers on all issues. One has but to think of the many problems which arise in relation to the deposit system. NOTES 1. Reprinted in Kaemmel, Das geltende Urheber- und Veriagsricht der Deutschen . Demokratischen Republik, Leipzig 1956, 173 ff. 2. Details ibid., 14 ff, especially also on the subject of the legal nature of these contracts. 3. See, in this connection, Munzer, "Gedanken zur Gestaltung eines sozialistischen Urheberrechts", Erfindungs- und Vorschlagswesen (hereinafter cited EuV), part B/C, [East] Berlin 1958, 35 ff. See also: Puschel, "Das Urheberrecht der Deut- schen Demokratischen Republik", EuY (B/C) 1959, 166 ff. 4. Miinzer, op.cit., note 3, 36. 5. See: Munzer, "Bericht ilber die Beratungen des Entwurfs eines Gesetzes fber den Schutz der Urheberrechte", EuV (B/C) 1959, 114 ff. Idem, "Entwurf des neuen Urheberrechtsgesetzes liegt vor !", Eu V (B/C) 1959, 161 ff. Idem, "Zur Diskussion uber den Entwurf eines Gesetzes uber das Urheberrecht", Eu V (B/C) 1960, 15 ff. 6. cy, Minzer, "Zu dem 2. Entwurf des Gesetzes iiber das Urheberrecht", EuV (B/C) 1960, 215 ff. 7. Munzer, Eu V (B/C) 1959, 114. 8. Cf., Milnzer, EuV (B/C) 1959, 36; Piischel, EuV (B/C) 1959, 166. 9. Puschel, "Uber die Zulassigkeit von Tonbandaufnahmen bei Sendungen des Staat- lichen Rundfunk-Komitees", Neue Justiz (hereinafter: NJ) 1953, 37 ff (39), com- mented as follows, with an eye towards the future: "Today's reproduction facilities ' such as instant photography, microfilm and phonogram, are no doubt the most obvious landmarks but, by the same token, only the temporary end-results, of a development which, as part of a process of constant expansion and diversification</p>
<p>33 . of the material and technical basis of our lives, will eventually lead, through the steadily growing general use of novel, easily accessible means of reproduction alone, by-passing all traditional publishing practices, to mass production of tech- nically accomplished copies of works and, in so doing, to a veritable and true socialization of the authors' intellectual patrimony, in proportions never before achieved." 10. Cf" for instance: Munzer, EuV (B/C) 1960, 17. See also: Kaemmel, "Gedanken und Vorschlige zum Entwurf eines Gesetzes 3ber das Urheberrecht", Eu V (B/C) 1960, 18, 19. 11. Cf., Bentzien, "Begriindung des Gesetzes fber das Urheberrecht", Staat und Recht (hereinafter: SuR), Potsdam-Babelsberg 1965, at 1523 ff (1927). 12. Ibid. 13. For a discussion of conceptual questions, see: P3schel, "Zur rechtssystematischen Stellung der im Gesetz iber das Urheberrecht der DDR geregelten Materie", 50 UFITA 1967, at 38 ff. 14. See also: M3nzer, "Das Gesetz uber das Urheberrecht der Deutschen Demokra- tischen Republik vom 13. September 1965", 48 UFITA 1966, at 129 ff. 15. This is expressly stated in Glucksmann, Rieger, and Walther, Das Urheberrecht, und die wissenschaflich-technische Information und Dokumentation, Leipzig 1966,18. 16. Nordemann, "Das neue ostdeutsche Urhebergesetz", GRUR 1966, 660. 17. This need is pointed out generally also in Nordemann, opcit., note 16. Bielen- berg, "Neues Urheberrecht in beiden Teilen Deutschlands", GRUR 1967, 228 ff (230), emphasizes that it was the task of the Preamble to ensure that in cases of doubt in applying the law, the so-called "legislator's will", expressed there, would . prevail. 18. Cf. , Puschel, "Die Ideologie des geistigen Eigentums und das sozialistische Ur- heberrecht der DDR", SuR 1967, at 1589 ff (1592). See also: G13cksman, "Zu einigen Grundfragen des Urheberrechts", Eu V (B/C) 1961, 157. 19. For a discussion of legal problems involved, see particularly Puschel, op.cit., note 18, at 1589 ff Idem, "Das subjektive Urheberrecht als sozialistisches Persönlich- keitsrecht", Festschrift Hans Nathan, XV ;Wssenschaftliche Zeitschrift der Hum- boldt Universitdt zu Berlin, Gesellschafts und Sprachwissenschaftliche Reihe (hereinafter: Wiss.Z. Humboldt-Univ. Berlin, Ges.-Sprachw. R), 1966, 799 ff. 20. Cf., P3schel, op.cit., note 18,1603. 21. Puschel, (id ), points out that society has an interest in the author's work even at the stage of its creation. It is in the author's own interest as well as in that of socialist society, Piischel claims, that the author be guided by the cultural organi- zations, through their activities as forecasters, organizers, and managers, in the selection of socially significant tasks and subjects. 22. According to this clause, neither property nor copyrights and the rights of in- ventors which, pursuant to para. 2 of Article II of the Constitution enjoy pro- tection of the socialist State, may be used in contradiction to the interests of society. For a diametrically different interpretation of this provision in comparison with similarly-worded provisions in non-socialist countries, see 1 Verfassung der Deutschen Demokratischen Republik: Kommentar, Dokumente, (Sorgenicht, Weichelt, Riemann, and Semler, eds.), [East] Berlin 1969, 251 ff. 23. For details of this provision which is concerned with protection and promotion of a socialist national culture, see: Mampel, Die sozialistische Verfassung der Deutschen Demokratischen Republik, Frankfurt/M 1972, 45S ff. 24. One should not overlook the fact that in this domain, the author's position has been rather strengthened, at least from a formal point of view, especially by Sec.17 which grants an author the right to prohibit such utilization of his work which would damage his artistic or scientific reputation; Sec.36, para.2 which safeguards the author's right to participate on an equal basis in all uses of his work by a cultural organization; and Sec.40 URG, which confines prospective changes in a work without the author's consent to the correction of obvious inaccuracies.</p>
<p>34 25. See the collective work, prepared under the direction of Puschel, Urheberrecht der Deutschen Demokratischen Republik (hereinafter: Püschel [or the respective contributor] in Urheberrecht), [East] Berlin 1969, 56. This is also implicit in Art.18 para.2 of the GDR Constitution, according to which it is the duty of the State and of all social forces to ensure the dissemination of artistic works and performances. 26. This is to be discussed in greater detail further below. 27. Cf., Pilsehel, in Urheberrecht, at 53. 28. In Muller and Thieme, "Der Schutz von Leistungen der Information und Dokumen- tation im Urheberrecht der Deutschen Demokratischen Republik", Dissertation, [East] Berlin 1973, at 166, Figure I, the generally acknowledged overlapping of these categories is most vividly presented in a graphic form. 29. Cf., Puschel, "Wissenschaftliche Information im Urheberrecht der Deutschen De- mokratischen Republik", Dokumentation/Information: Schriftenreihe des Instituts fiir Informationswissenschaft. Erfindungswesen und Recht der Technischen Hoch- schule Rmenau (hereinafter: Dokumentation/ Information) 1974 No.26, at 17 ff (19). Puschel opposes a separate copyright in scientific works. 30. Muller and Thieme, op.cit., note 28, 149, closely following the URG itself, ven- tured the following definition of "works": "Works are productions of a representa- tional nature in the fields of literature, art, and science, which (a) are extant in an objective form, and (b) represent an individual creative achievement." 31. Cy, Miinzer, in Urheberrecht, 88. 32. Cf., Miinzer, "Das Werk und sein Urheber", NJ 1965, 670. 33. Further details in Miinzer, works cited supra. Idem, in 48 UFITA 1966, 131. 34. Miinzer, in Urheberrecht, 89. 35. Milnzer, in NJ 1965, 670 n.2. 36. Cf., Bezirksgericht (BG) Leipzig 19 February 1974; NJ 1974, 534 (535). The Senate affirmed the presence of an individual creation in two advertising brochures ("What One Ought to Know About Hobbyplast" and "Bowls, Containers, and Coat- ing with Hobbyplast") and found that the plaintiffs creative input was not con- fined to a predominantly editorial treatment of already extant materials. 37. For leading opinions, see, e.g. Piischel, "Zu einigen Grundfragen des neuen Ur- heberrechts der DDR", GRUR 1968, 300 ff (303). Muller and Thieme, op.cit., note ' 28,217. 38. In this sense, at least by implication: Miinzer, in Urheberrecht 100, 481 ff. Miller and Thieme, op.cit., note 28, 217 ff. Puschel, in 50 UFITA 1967, 43, n.8, is in- clined to subordinate maps and other geographical and similar representations "possibly exclusively" to protection of "related" rights (Leistungsschutz). See also: A. Glucksmann, in Urheberrecht, 549, n.18, in whose opinion all perfor- mances (Leistungen) enumerated in Sec.78 URG are eligible for protection only under the Leistunguchutz, Le. system of protection of "related" rights. Norde- mann (GRUR 1966, 661), who is of the same opinion, believes that this provision violates the Revised Berne Convention. 39. Cf., Muller and Thieme, op.cit., note 28, 218, who point out, no doubt accurate- ly, that the same criteria must apply here as in the case of works made up of words. The eligibility of the latter for protection under copyright statutes does not depend on the skillful manipulation of syntax, either. 40. See Milnzer, NJ 1965, 671. Idem, in 48 UFITA 1966, 132 ff. Idem, in Urheber- recht, 94 ff. Cf. also: Müller and Thieme, op.cit., note 28, 181 ff, who present a particularly thorough analysis of these questions. 41. Cf., Thieme, "Der Schutz von Teilen eines wissenschaftlichen Werk im Urheber- recht der DDR", DokumentationlInformation 1972 No.18, at 21 ff (24). 42. Id, 27. 43. Id., 28 ff. 44. Ibid. But see: Grossgebauer, "Zum Begriff des Schdpferischen in der Publikation wissenschaftlicher Erkenntnisse und erste urheberrechtliche Schlussfolgerungen fur</p>
<p>35 die Ausarbeitung einer Publikationsordnung im Bereich der Deutschen Akademie der Wissenschaften (DAW)", XX Wiss. Z. Humboldt-Univ. Berlin, Ges.-Sprachw.R. 1971, 2, 163 ff. Contra: Thieme. 45. Thieme, op.cit., note 41, 29. 46. Id, 27; Thieme points out that if the law expressly requires that the title possess an individual creative character, this is due to the fact that even titles which do not meet this condition are protected against the danger of confusion. 47. Representative opinion in Munzer, in Urheberrecht, 98. 48. In this sense, cf. Munzer, NJ 1965, 672 ff. See also idem, in Urheberrecht, 98. 49. The independence of this protection is expressly laid down in Sec.84, para.3 URG. 50. Cf., Miinzer, in Urheberrecht, 494. 51. For details, see ibid., 494 ff. 52. Glucksmann, Rieger, and Walther, op.cit., note 15, 24. These authors proceed on the no doubt accurate assumptions that even the titles, which are protected under Sec.3 URG, should prove to be no obstacle for information and documentation, because the conditions of protection laid down in that norm are extremely seldom likely to be met. 53. See generally Nordemann, GRUR 1966, 662. Munzer, NJ 1965, 672. Idem, in Ur- heberrecht, 124. 54. Cf., Miller and Thieme, op.cit., note 28, 153. 55. For details, see Minzer, in Urheberrecht, 124 ff. 56. Cf., ibid., 97. 57. Id. 58. Further details, ibid., 98. 59. Ibid., and Müller and Thieme, op.cit., note 28, 242 ff, in a most thorough ana- lysis answer affirmatively the question whether specifications (Standards) may be eligible for protection as objects of copyright. In regard to descriptions of in- ventions, see Muller and Thieme, op.cit., note 28, 258 ff. 60. Id., 247, 250 ff. 61. Ibid. 62. Id, 250. Müller and Thieme point out that such possibilities are anchored in the Constitution. 63. Id., 251. 64. Id., 252. 65. Cf , Supreme Court (OG) 22 October 1968, NJ 1969, at 59 ff (60), including Note by Cohn, NJ 1969, 61 ff. See also: Puschel, "Der Schutz wissenschaflicher Leistungen im Urheberrecth der DDR", Dokumenation/Information 1972 No. 18, at 3 ff (5 66. Cf. in this connection, M3nzer, 48 UFITA 1966, 134 ff. Idem, in Urheber- recht, 108 ff. 67. Expressis verbis in a decision by BG Leipzig 19 Febraury 1974, NJ 1974, 534. For details, see also: Munzer and Puschel, "Die Stellung des Urhebers im Arbeits- verh£ltnis" , NJ 1974, 357 ff. 68. Cf., supra, 7 and note 29. 69. See: Puschel, in DokumentationlInformation 1972 No.l8, 4. 70. See: Puschel, in Dokumentation/lnformation 1974 No.6, 19. 71. Die intemationalen Beziehungen in den Referentenent%4rfen zur Urheberrechts- reforms, [East] Berlin 1955, 60. 72. Ibid. 73. Grossgebauer, op.cit., note 44, 2, 175. See also: Muller and Thieme, op.cit., note 28, 210 ff. 74. Cf. Thieme, "Die Information und Dokumentation im Urheberrechtsgesetz der Deutschen Demokratischen Republik", XX Wiss. Z.Humboldt-Univ. Berlin, Ges.-Sprachw.R. 1971, 187 ff. Müller and Thieme, op.cit., note 28, 155 ff. 75. Id, 211. 76. Cf., Thieme, op.cit., note 74. See also: Püschel, in Urheberrecht, 7 ff.</p>
<p>36 77. Grossgebauer, op.cit., note 44, 175, appears to consider chemical formulae, diagrams, Tables, and similar non-verbal representations as protectable only "when conceived of as components of a given work". 78. Muller and Thieme, following Volz, "Einige Gedanken zum Begriff Information", in 16 Deutsche Zeitschrift Jilr Philosophie 1968 No.3, at 336 ff (343), see the dif- ference between a series of symbols and a pattern of symbols in the fact that while in a series of symbols the latter can be read consecutively line after line, in pat- terns of symbols the order in which the symbols are arranged in space in relation to one another determines the form of the representation itself (Darstellung). 79. Id., 210 ff. 80. Id , 213 ff. 81. See: Freytag, "Einige theoretische Voraussetzungen fur die Schaffung neuer In- formationsquellen, dargelegt am Beispiel von 'Informationsartikel-Depotbericht', sowie VorschLige zum Aufbau eines zentralen Depot systems in der DDR", Disser- tation, [East] Berlin 1970, 64 ff, incL the bibliographical sources given therein. 82. 'The findings of the Weinberg Report (United States) in particular have also been taken into consideration. For details, see Freytag, op.cit., note 81, 47 ff. 83. Freytag, op.cit., note 81, 106, emphasizes that as a result of the introduction of the deposit system, the journal has not been transformed into "periodical papers of . information and documentation, with substantial downgrading of the scope of its journalistic mission", but, quite to the contrary, its tasks have been increased especially also with this mission in mind. 84. Unfortunately, only the conditions prevailing up to 1972 can be taken into account here, since no new works dealing with these questions have come to our attention since the publication of Freytag, "Fragen des Urheberrechts bei der Einfiihrung des Depotsystems in wissenschaftlichen Zeitschriften", XXI Wtss. Z.Humboldt-Univ. Berlin, Ges-Sprachw.R. 1972, 4, 479 ff. 85. All cited in Freytag, op.cit., note 81, 64 ff" notes 62 to 70. 86. Freytag's research, id., 77, 81, 84, 114, shows that, for a number of reasons, other publishing houses were unable to adhere to these standards. Freytag blames this failure on the absence of a common direction which, in turn, "turned the ex- perience of Verlag Technik into a multitude of separate experiments of the indivi- dual publishing houses", idem, 114. Freytag's cridcism, it is true, related to the system as a whole, with all its discrepancies. 87. VT Standard 3.002.67, cited in Freytag, op.cit., note 81, 67. 88. Ibid. 89. Id, 68. 90. For details, id., 64-89. Several publishing houses were in the process of intro- ducing the deposit system. All such publishing houses specialized in the fields of natural sciences and technical knowledge. 91. In the six journals published by Verlag Technik, a total of forty information ar- ticles have appeared in 1968, to be followed in 1969 by sixty. Cf" id., 69. 92. Ibid. 93. Ibid. 94. For instance, in the publishing house Bauwesen. Cf., id., 75. 95. For instance, the periodical Eisenbahnpraxis published by the Transpress pub- lishing house. Cf., id, 76. 96. For instance, in the publishing house VEB Deutscher Yerlag fur Grundstoffindustrie. Cf" id., 80. 97. Id., 70. 98. For instance, the periodical Deutsche Post in the Transpress publishing house. Id, 78 ff. 99. Id., 70. 100. Id, 73. 101. Id., 77. 102. Freytag, id., 74, says in so many words: "The threat of the deposit report led at</p>
<p>37 the same time to a reduction in the number of excessively lengthy articles...". 103. Id., 91 ff. Similarly, Puschel, in lnformation/Dokumentation 1972 No.18, 8. 104. Freytag, op.cit., note 81, 91 ff, points out in addition that the deposit system permits, among others, also a better implementation of political-ideological and spiritual-cultural tasks. Id., 104 ff. 105. Cf., Freytag, op.cit., note 84, 480. Implicitly also in Muller and Thieme, op.cit., . note 28, 236; and in Puschel, in Information/Dokumentation 1972 No.18, 8. 106. Cf., Freytag, op.cit., note 84. Muller and Thieme, op.cit., note 28, 233, how- ever, point out expressly that even the Referat can contain information of im- mediate use to the specialist, although, as a rule, such cases are rare. 107. Freytag, op.cit., note 105. ' 108. Cf., Muller and Thieme, op.cit., note 28, 236. Freytag, ibid, rejects the view formerly held by Wass, "Die Bedeutung des Depotsystems in der Fachpresse der Zukunft", in Bórsenblatt für den deutschen Buchhandel (Ost) 136 (169) 49, at 950 ff (954); quoted in Freytag, ibid., according to which the author of the deposit _ report must be regarded as the author also of the information article, regardless of who had actually written the information article. - .... - - 109. Muller and Thieme, op.cit., note 28, 235. 110. Sec.24 para.1 URG says expressly: "It is lawful, for the purposes of information, to publish [ver6ffendichen in the form of a brief summary the essential tenor of scientific, technical, or literary works which have already appeared Iverbffent- lichen." 111. Cf., Gluckmann, Rieger, and Walther, op.cit., note 15, 29. 112. While Muller and Thieme, op.cit., note 28, 271, and Thieme, "Referieren und Referat im Urheberrecht", Dokumentation/Injormation 1973 No.22, 99, proceed on the assumption that the reference report (Referat) is typically eligible for protec- tion as an object of copyright, with the annotation serving as the boundary sep- arating copyrightable works from those which are not eligible as objects of copy- right, Glucksmann and Langhans, in Dokumentation/Information 1974 No.26, 45, and likewise Puschel, "Probleme des Urheberrechts in Information und Dokumenta- tion", DDR Medizinreport 1974 No.8, 675 ff (689-690) take the opposite view. 113. Muller and Thieme, op.cit., note 28, 270. 114. Definition of an annotation, given in Schmoll, Wortschatz und Terminologie der Information und Dokumentation, Leipzig 1967, cited in id., 263. 115. Muller and Thieme, op.cit., note 28, 265. 116. For details, see id., 290 ff. 117. Cf. for further details, id., 280 ff. But see: Glucksmann, Rieger, and Walther, op,cit , note 15, 30. See also: Püschel, in Urheberrecht, 177-178. 118. For details, see Brandt and Schonrath, "Rechtsschutz fur Computerprogramme", Probleme des Schutzes von Erfindungen, Mustern und Kennzeichnungen, der neuerer Part B (hereinafter cited as neuerer B) 1969, 62 ff. Brandt, Der Rechts- schutz von Rechenprogrammen der elektronischen Datenverarbeitung, Potsdam- Babelsberg 1973, 70-86. 119. Urheberrecht, (Puschel, ed.), Leipzig 1975, 30. This does mean, of course, that an author is not permitted, on the strength of his decision alone, to "publish" his work even by means of public delivery or utterance. 120. Cf. Muller and,Thieme, op.cit., note 28, 235 ff. Freytag, op.cit., note 84, 481. Puschel, in Information/Dokumentation 1972 No.18, 9. 121. Cfi Puschel, op.cit., note 120, 9. 122. Ibid. 123. An analogous view was expressed in Muller and Thieme, op.cit., note 28, 237. 124. Freytag, op.cit., note 84, 484. Freytag does concede, though, that the existing deposit systems do not, as a rule, fulfill the conditions required of a central depositary. 125. Miinzer, in Urheberrecht, 151. 126. Muller, "Urheberrechtliche Probleme bei der Anwendung der Mikrofilmtechnik",</p>
<p>38 Informatik 1974 No.6, at 42 (43). 127. For questions relating to publication of reports prepared in view of diplomas, cf. Pilschel, op.cit., note 112, 675 ff (584). 128. But even so defined, the right of reproduction does not encompass the cases of "free utilization" of the work and of statutory licenses (Sections 21 et seq., and 32 URG). 129. It is especially not subject to doubt that this applies not only to all known, but also to further techniques of duplication. Cf. Glilcksmann, Rieger, and Walther, op.cit., note 15, 36. Miinzer, in Urheberrecht, 153. M!iUer, "Urheberrechtliche Fragen der Vervie1fåltigung in der Information und Dokumentation", Information/ Dokumentation 1973 No.22, 101. 130. For representative examples of "forms of use" of a work in scientific information, see InformationIDokumentation 1974 No.26, at 25 ff (26). 131. See also: Milnzer, in Urheberrecht, 152 ff. 132. Puschel, op.cit., note 119, 32. 133. For details, see Miinzer, in Urheberrecht, 153. Mlinzer points out that Sec.18, para.2 URG applies not only to books, but to all works that are subject to free dissemination, such as sheet music, gramophone records, sound tapes, etc., with the exception of prints of films that are used pursuant to a separate right of demonstration. 134. For details on questions of duration of protection, see Glucksmann, in Urheber- rech t, 207 ff, 409 ff. 135. Id, 11. 136. Nordemann, op.cit., note 53, 662, speaks of "statutory user rights" (gesetzliche Nutzungsrechte); GIUcksmann, Rieger, and Walther, op.cii., note 15, 38, of "society's rights to the use of a work" (gese//schaftliche Rechte zur Verwendung des Werkes). 137. Excluded are the cases regulated under Sec.24, para.3, and Sec.26(c) URG. 138. Piischel, in Urheberrecht, 163. Idem., SuR 1967, 1595 ff. 139. Miinzer, op.cit., note 14, 143. 140. Cf., id., 144. Piischel, in Urheberrecht, 163. 141. This does not apply, e.g. in the cases provided for under Sec.23 URG. 142. Cf., Piischel, in Urheberrecht, 160 ff. See also: Beate M6nch and Karin Gust, "Zu einigen Problemen des Urheberrechts bei der rationellen Verwendung und Bereit- stellung von Lehrmitteln und wissenschaftlichen Informationen im Volksbildungs- wesen der DDR", XX Wiss. Z.Humboldt-Univ. Berlin, Ges.-Sprachw.R. 1971 No.2, 193. 143. Sec.32 URG constitutes a separate sub-division of the URG, titled "statutory licenses". But Puschel, in Urheberrecht, 160 ff, justly includes it among "free uses". 144. Sec.22 URG applies to all categories of works. The so-called "rigid melody pro- _ tection" has thus been dispensed with in this case. Cf, in this connection, Miinzer, op.cit., note 14, 145. According to the Kreisgericht (KrG) Rudolfstadt (C60/64 of 21 May 1965, cited by Piischel, in Urheberrecht, 167), the original work may serve, within the context of this provision, only as a general stimulus for the free, individually creative development of the material. 145. Puschel, op.cit., note 9, 39, favors different levels of fees depending upon the kind of use made of the phonorecord. 146. Thieme, "Urheberrechtliche Probleme bei der Anwendung moderner Vervielfal- tigungsverfahren fur wissenschaftliche Ver6ffentlichungen", Eu V (B) 1959, 17 ff (19). 147. Ibid. 148. Decision of 14 June 1955; GRUR 1955, 549. 149. Thieme, op.cit., note 146, 20. 150. Ibid. 151. An exception, according to Sec.23, second sentence, URG is the copying of a work</p>
<p>39 of architecture. 152. This represents the leading opinion. The special problems pertaining to sound recordings - not discussed here - are analysed in John, "Theoretische Grund- lagen des Rechts der freien Werknutzung bei der Herstellung und Benutzung von Tonbandaufnahmen zum persbnlichen Gebrauch", XXI Wiss. Z.Humboldt-Univ. Berlin, Ges.-Sprachw.R. 1972 No.4, 473 ff. 153. Ibid. 154. Cf., Freytag, op.cit., 152. 155. For further details, see Muller and Thieme, op.cit., note 28, 334; and supra, 24, and n.126, 127. 156. Thieme, in DokumentationlInformation 1974 No.26, 26. Thus far, Thieme is the only one to have addressed this problem. , 157. Cf. Puschel, in Urheberrecht, 171. Müller and Thieme, op.cit., note 28, 342 ff. 158. Glucksmann, Rieger, and Walther, op.cit., note 15, 42, claim that such had been the law in the GDR even prior to the enactment of the URG. 159. For further details, see Puschel, in Urheberrecht, 170 ff See also: Müller and Thieme, op.cit., note 28, 343, who also delve into the question to what extent an enterprise may derive an economic benefit through the professional use of copies of . duplicated works. They consider such use no longer admissible when the juristic person makes use of the duplication for the purpose of realizing direct profit. 160. Cf. Puschel, in Urheberrecht, 179 ff. Idem, in Medizinreport, 691. Piischel men- tions as an example the replacement by libraries and documentation centers of lost . or destroyed archival materials, etc. Muller and Thieme, op.cit., note 28, 344, are inclined to recognize such a right more generally as belonging to juristic persons. It is questionable, however, whether their opinion is shared by most other au- thorities. See generally also Glucksmann, Rieger, and Walther, op.cit., note 15, 42. 161. C£ Puschel, in Urheberrecht, 171. Idem, op.cit., note 119, 38. While Piischel speaks of a fee covering the costs, Glucksmann, Rieger, and Walther, op.cit., note 15, 44, go even further by including in the amount of the fee not only over- head costs, but also a share in the profits which does not, however, represent royalties for the exercise of a copyright. 162. See Muller, op.cit., note 126, 43. See also: M6nch and Gust, op.cit., note 142, 197 ff. 163. C£ Piischel, in Urheberrecht, 171. Miiller, op.cit., note 162, 43. 164. Cf. Piischel, eodem loco; idem, op.cit., note 119, 38. Gliicksmann, Rieger, and , Walther, op.cit., note 15, 42. Muller, op.cit., note 126, 43. Glucksmann, "Die wissenschaftliche Information im Urheberrecht der DDR", Dokumentation/Infor- mation 1973 No.22, 102-103. But see: Müller and Thieme, op.cii., note 28, 338, who state as follows: "It is in the interests of society that a library be permitted to main- tain stocks of duplicated copies that may at times coincide with personal or pro- fessional or professional use, must be answered in the affirmative, as being in con- formity with the law." 165. M6nch and Gust, op.cit., note 142, 197. 166. Muller and Thieme, op.cit., note 28, at 149 ff (351). 167. See for instance, M6nch and Gust, op.cit., note 142, 198. 168. See: ADN, "Rationellere Information durch Xerokopien", neuerer B, 1969, 92. 169. Cf. M6nch and Gust, op.cit., note 142. 170. For details, see Puschel, in Urheberrecht, 173 ff. 171. Monch and Gust, op. cit., note 142, 194 ff. 172. Id., 195. 173. Id., 196. 174. Thieme, op.cit., note 74, 188. 175. Id., 187. 176. Cf. , .rupra. 177. Thieme, op.cit., note 74, 189.</p>
<p>40 178. Id, 190. 179. Cf. e.g. in Urheberrecht, 177; also in Medizinreport, 692. 180. Freytag, op.cit., note 84, 481. 181. Muller and Thieme, op.cit., note 28, 361 ff. See also: Thieme, in Dokumentation /lnformation 1973 No.22, 100. 182. Id., 363. 183. Cf. Thieme, "Urheberrechtliche Fragen der Information und Dokumentation bei der Verwendung von Verbandswerken im Sinne der Revidierten Berner Ubereinkunft (RBU)", XXII Wiss. Z.Humboldt.Uni9. Berlin, Ges.-Sprachw.R 1973 No.4, 281 ff (286). 184. Ibid. 185. Ibid. ' 186. Ibid. 187. Cf. Puschel, in Urheberrecht, 74. Muller and Thieme, op.cit., note 28, 371. 188. Puschel, in Urheberrecht, 74. 189. Cf. Muller and Thieme, op.cit., note 28, 370 ff. 190. These are protected as "editions" (Herausgaben) under Sec.4, para.2 URG. Cf. Piischel, in Urheberrecht, 178. 191. See generally: Muller and Thieme, op.cit., note 28, 374 ff. 192. Cf. P3schel, in Urheberrecht, 178. According to Müller and Thieme, id., 375, this includes not only the regularly issued "printed organs of publication" (erscheinen- de Publikationsorgane) but also in-plant documentation services. 193. Cf. Muller and Thieme, op.cit., note 28, 376. 194. Id., 379. 195. Id., 378. 196. Id, 393. Muller and Thieme believe, however, that it is both possible and per- missible to utilize translations even in cases provided for under para.2 of Sec.24 URG, and in respect of quotations and excerpts within the meaning of Sec.26(a) and Sec.24, para.l, first sentence URG. 197. Ibid Less clearly in Sauerstein, in Urheberrecht, 342. 198. See, for instance, Püschel, in Urheberrecht, 198. 199. For details, see Muller and Thieme, op.cit., note 28, 383. 200. Piischel, in Urheberrecht, 179. Cf. also: ibid. 201. Cf. Muller and Thieme, op.cit., note 28, 383. 202. For further details, see Puschel, in Urheberrecht, 180 ff. .</p>
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