Copyright personality and the author's personality right

Copyright personality and Copyright law are essentially linked to moral rights. The moral right is based on the particularly close relationship that exists between the author and his work. It develops from the special creative process that characterizes the creation process of artists' works, for example.

What exactly does moral rights cover? What elements does it consist of? What is its complexity?

You will find all relevant information on this legal matter in the following explanations.

Content

• What is moral rights?
• The moral right and its components
• The right of publication
• The right to recognition of authorship
• The right to protection against distortion of the work
• Three-stage examination
• Moral rights are a complex legal matter
• Conclusion
• FAQ

What constitutes moral rights?

Section 11 of the German Copyright Act (UrhG) sets out the two directions of protection of German copyright law: on the one hand, the intellectual and personal relationship of the creator to his work is to be protected and, on the other hand, the use and exploitation of the work. The use of the work gives the creator the property right to receive appropriate remuneration for his work (Section 11 sentence 2 UrhG). Copyright law therefore also has the function of securing this remuneration for the author.

As a second level of protection, copyright law recognizes the intellectual and personal relationship of the author to his work. This is also referred to as moral rights. As copyright law requires a certain level of creation for literary, scientific and artistic works to be eligible for protection, a work always requires a certain creative process on the part of the author. The creative process is the process in which artists create their works.

The two directions of protection - the protection of the close relationship and the protection of exploitation rights - are inextricably linked in this context. This is reflected in the fact that the rights to which the author is entitled can affect both moral and material interests. This monistic basic structure of copyright law is also expressed in the wording of Section 11 sentence 1 UrhG, which mentions the protection of the close relationship as well as the exploitation rights under property law and places them side by side on an equal footing with the word "and".

Moral rights and general personality rights

There is not only a conceptual connection between moral rights and general personality rights (APR for short). Due to the monistic basic idea of copyright law - i.e. the coexistence of the protection of the close relationship between the work and the author and the protection of exploitation rights - moral rights also inseparably protect the work and the personality of the author.

The general right of personality is a comprehensive right derived by the Federal Constitutional Court from human dignity and the general freedom of action (Art. 1 para. 1 GG in conjunction with Art. 2 para. 1 GG), which protects the honor and dignity as well as the identity and free development of the personality. The APR is not linked to a work, but the protection from this fundamental right protects every person and their personality.

However, the moral right presupposes a work and a creator of this work in order to protect the close connection between the two. However, neither only the person of the creator and his personality nor only the work is protected. Insofar as the individual development of the creator has been incorporated into his work, this creativity is worthy of protection. If the personality of the author is affected by an infringement and the infringement does not affect the relationship between the work and the author, the general right of personality takes precedence.

The moral right of the author and the general right of personality thus exist side by side, as they have different directions of protection, but can also lead to mutual conflicts.

Beginning and end of the moral right

The close and protectable relationship between the work and the author can only arise if a protectable work has been created. As a highly personal right, the moral right as a whole cannot be transferred (Section 29 (1) UrhG). However, individual elements of the moral right, such as the right of first publication, can be transferred together with rights of use or exploitation. The moral right is inheritable (Section 28 (1) UrhG) and can also be made subject to requirements or conditions as a testamentary disposition. The author can also order the execution of a will in order to secure his interests for the future.

The moral right ends with the expiry of the copyright protection period of 70 years. This does not depend on the year in which the work was created, but in accordance with Section 64 UrhG, the term of protection begins with the death of the author. This also applies to exploitation rights under property law.

The moral right and its components

The moral right is essentially made up of three rights:

• Publication right, Section 12 UrhG
• Recognition of authorship, Section 13 UrhG
• Protection against distortion of the work, § 14 UrhG

In addition to these three components, moral rights also extend to other copyright claims and powers. These are, for example, the claims for damages under §§ 97 ff. UrhG.

The right of publication

According to Section 12 (1) UrhG, the author has the right to determine whether and how his work is published. This also includes the right to determine the place and the specific form of publication of the work. However, this only concerns the right of first publication. Pursuant to Section 23 (1) sentence 1 UrhG, this also extends to the publication of adaptations and other adaptations of the work.

In the case of a secondary publication of the work in another form, e.g. if a novel is published as a film, the original author as creator no longer has the right to determine the publication. If the work has already been published with the author's consent, the author's right of publication is exhausted.

Publication

A work is published within the meaning of Section 6 (1) UrhG if it has been made available to the public as the interested and typically addressed group of persons. If the work has only been presented to a small circle of selected persons, it cannot yet be said to have been published.

The right of publication is designed as a defensive right. This means that the author can defend himself against unauthorized publication. However, there is no right to publication. The author can also transfer the right of publication to a third party, e.g. together with the right of use. In this case, the time of first publication is often determined in a usage agreement in agreement with the author.

Protection within the framework of moral rights

Since the author also reveals his ideas, conceptions, personal views and opinions as well as his abilities with the publication of his work, he exposes himself to public knowledge and possible criticism with the publication. Because of this insight, also into his personality, the right of first publication is protected under the moral rights of the author.

Notification of the content of the work or notification of content, Section 12 (2) UrhG

§ Section 12 UrhG contains a further right of the author in para. 2. If the work has not yet been published or has not been published in full, the author also has the right to communicate the content of the work to the public or to describe it. This right is limited to the first publication of the content of the work. If the work has been published, the right to communicate the content remains with the author.

The right to recognition of authorship

The core area of moral rights includes the recognition of the author's authorship. According to Section 13 sentence 1 UrhG, the author can take action against anyone who disputes or denies his authorship. In addition, the right of recognition also means that the author can take action against anyone who claims authorship (e.g. through plagiarism).

The author can decide whether or not they wish to exercise their right to acknowledge authorship. Ghostwriters, for example, waive this right. The author also exercises the right to acknowledge his authorship by rightly describing another person's work as a plagiarism of his own work. Only the author can assert the right of recognition under Section 13 UrhG, not the client of a work.

According to Section 13 sentence 2 UrhG, the author can determine whether and in what form (pseudonym, civil name of the author, etc.) his work is to be provided with an author's designation - so-called author's designation right. The freedom to decide on the "whether" of an author's designation also allows the author to remain anonymous or to distance himself from his work.

The right to protection against distortion of the work

§ Section 14 UrhG contains the right to protection against distortion and the right to the integrity of the work. The special relationship between the author and the work is expressed in the fact that it is up to the author to decide how he wishes to present his work, which is an expression of his individual artistic creativity, to the public in the future or how it should be presented to the public. This also applies if a work has been sold, as this does not completely sever the link between the work and the author. Thus, the owner of a work may not interfere with the integrity of the work at will and distort or alter it.

The work is protected under Section 14 UrhG against impairment (generic term), distortion and alteration as qualified types of impairment. If a piece of music is used as a ringtone without having been created for this purpose, this already constitutes an interference with the integrity of the work, as the listening experience of the piece of music is no longer the focus of the created work. Ringtones are also often perceived as disturbing. The same applies if a movie is shortened by a third.

The right of integrity is further developed for certain applications. These are: § Section 39 UrhG, Section 62 UrhG and, for the film sector, Section 93 (1) UrhG. In principle, it is possible to use a work in a form other than that intended by the author if there is sufficient distance from the original (Section 23 (1) sentence 2 UrhG). There is no impairment under Section 14 UrhG if, for example, the right to quote or the parody limitation with the requirements of Sections 51 and 51a UrhG are observed. In such a case, there is no risk that the work can still be attributed to the author and therefore Section 14 UrhG does not apply.

Three-stage examination

In practice, a three-stage examination approach is followed when examining a possible infringement of this right:

1. The first step is to examine whether an impairment has occurred. This is already the case if the original overall impression has been demonstrably altered. On the one hand, the substance of the work may have been interfered with. However, the work may also have been placed in a completely different context (piece of music is used as a ringtone). Potentially, even a deterioration or such a change that would objectively represent an improvement of the work can already constitute an impairment, as it affects the creative achievement of the author and the intended external representation of the work. This also includes abridgements, additions or excerpts of the work. The destruction of the work also constitutes an impairment.
2. In a second step, it must be examined whether the impairment of the work is likely to jeopardize the intellectual and personal interests of the author. In principle, it must be assumed that the author has an interest in the continued existence of the work, so that any impairment of the work also jeopardizes the interests of the author. However, this presumption does not apply if the author has consented to the impairment. Certain impairments are permissible (Sections 51, 51a UrhG). This also applies if only insignificant changes are involved, such as the correction of spelling mistakes. However, such cases can be a matter of interpretation in practice. The same applies to cases in which the interference only takes place within the private sphere of the owner. This may be permissible under certain circumstances, but even in a private home the work is made accessible to a limited public, so that the interests of the author may be jeopardized.
3. In a third step, the interests of the author and the user/owner of the work must be weighed up. An infringement exists if the impairment jeopardizes the legitimate intellectual and personal interests of the author. This is a case-by-case decision in which all circumstances relevant to copyright law in the specific case must be taken into account. These include, for example, the type and intensity of the infringement, the level of creation, the individual nature of the work and the purpose of exploitation. However, the starting point of the consideration remains the author's interest in the integrity of the work. In individual cases, the modification of a work may be absolutely necessary, for example to protect other legal interests from impairment. For example, an intervention may be justified if the client changes the plans of an architect because certain specifications in these plans could lead to the collapse of the building. The interests of the author and his moral rights must be taken into account. This means that the least serious interference with the integrity of the work must be chosen on a case-by-case basis.

It is not always possible to reach an agreement, especially when it comes to the difficult balancing of copyright interests.

Long legal disputes can be the result. In such cases, the author of a work often only has the option of engaging a lawyer specializing in copyright law to protect his moral rights.

Moral rights are a complex legal matter

When weighing up the interests of third parties and the author in the context of moral rights, it should be noted that the author's rights are always weaker long after his death than during his lifetime. However, this must be weighed up on a case-by-case basis.
Particularly in the area of moral rights, complex legal questions often arise in individual cases. This is where an experienced lawyer specializing in copyright law comes in.

Conclusion

• Moral rights are a central component of copyright law and place particular emphasis on the close relationship between the author and their work.
• It includes the right to publication, the right to recognition of authorship and the right to protection against distortion of the work.
• The moral right and the general right of personality are closely linked, but protect different aspects of the author's personality.
• The moral right is not transferable, except for certain elements such as the right of first publication.
• It ends with the expiry of the copyright protection period of 70 years after the death of the author.
• The moral right consists of three main components: the right of publication, the right to recognition of authorship and the right to protection against distortion of the work.
• There can be conflicts with the interests of third parties in various situations, which can lead to complex legal issues.
• When balancing the interests of the author and third parties, it is important to consider the individual circumstances and, if necessary, seek legal assistance from a specialized lawyer.

FAQ

Picture credits: Kevin Jarrett | Unsplash