tag:blogger.com,1999:blog-12505562.post6147841419400022360..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Raising (Citizen) KaneWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-12505562.post-20021048244787365802007-06-01T20:16:00.000-04:002007-06-01T20:16:00.000-04:00Thanks so much for your extensive comment Zohar. I...Thanks so much for your extensive comment Zohar. In Guiseppina D'Agostino's 2002 article, "Copyright Treatment of Freelance Work in the Digital Era," 19 Santa Clara Computer & High Technology Law Journal 37, the situation on Germany is discussed, in particular the relationship between the Article 31(4) of the German Copyright Act and the 1901 German Publishing Act, especially as it played out in Frelens v. Der Spiegel, 308 O. 284/96 (Regional Court of Hamburg 1997), translated in 22 Columbia VLA J.L. & Arts 178 (1998).William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-81242047849475260522007-06-01T19:29:00.000-04:002007-06-01T19:29:00.000-04:00I would like to underscore the current debate in G...I would like to underscore the current debate in Germany about the provision concerning “new types of use.” Indeed, current section 31(4) of the German Copyright Act stipulates a rather harsh and unequivocal rule. The law simply declares that the transfer of “use rights” concerning ”not-yet-known types of use” shall be void. [The text reads: “Die Einräumung von Nutzungsrechten für noch nicht bekannte Nutzungsarten sowie Verpflichtungen hierzu sind unwirksam.”] <BR/><BR/>So, for example, courts had to (rather arbitrarily) determine when a certain new mode of exploitation, say television, became “known” (in the case of television, the High Federal Court pointed at the year 1939). The obvious problem with the rule is how and according to which criteria should the court reach the factual finding about the economic significance of a certain use. For instance, there is no consensus when reproduction and distribution of video tapes of films became a "known" type of exploitation. <BR/><BR/>The term “Nutzungsrechte” has a unique meaning in German copyright law, but the original idea is quite simple. The legislature sought to protect authors (which are always, by definition, human creators) who often find themselves depended on, but in an inferior bargaining position vis-à-vis derivative exploiters such as publishers and employers. (By the way, there is no work-made-for-hire rule in German law). The provision's sparse language produced uncertainties and provoked calls for shedding more light on the concept of “know-ness” by amending the statutory text. The recent discussion surrounding the “second bundle” of amendment to the German copyright law reflects a tendency to strike out this rule, at least in its current form.<BR/><BR/>In the U.S., the problem relates mostly to interpretation of old contracts, as noted in the post, and whether author protection considerations should guide the contract interpretation craftsmanship. In Germany, the debate places a long-standing, authors-protective rule under scrutiny. The policy consideration guiding courts and legislatures in both countries are not that dissimilar. It issue boils down to whether, and in how far, could and should the law interfere with the freedom of contract between creators and publishers negotiating the transfer of rights secured under copyright. <BR/><BR/>The “hands off” approach - a trend which penetrated also the discourse in a personhood jurisdiction such as Germany - would let markets operate as freely as possible, touting the holy trio of property, contract and markets. But the dilemma remains viable. On the one side you have human creators that would sign anything in order to get published, even highly oppressive terms formulated by experienced lawyers. On the other side you have the concentrated power of media conglomerates. Should not the law of copyright do something to correct this apparent distortion? This leads rather quickly to framework questions about copyright’s purpose and justification. No doubt, the question how a utilitarian system can pointedly secure the economic interests of human creators is a difficult riddle. Maybe it should not bother in the first place, should it?Anonymousnoreply@blogger.com