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Copyright personality and the author's personality right

Copyright law is essentially linked to copyright personality and moral rights.

Copyright personality refers to the particularly close relationship of an author to his or her work. It develops from this very specific creative process, which, for example, characterises the process from which artists' works emerge.

copyright personality
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Moral rights and their contents

The author of a work establishes a special intellectual and personal relationship with the work he or she has created. Section 11 UrhG describes this special relationship between the creator and the work in terms of a copyright personality.

Individual moral rights are intended to comprehensively protect this relationship and thus the entire copyright personality.

The following elements and standards in the Copyright Act are relevant here:

  • The right of publication under Section 12 UrhG.
  • The right to acknowledge authorship under Section 13 UrhG.
  • The right to protection against distortion of the work under Section 14 UrhG.

Are moral rights the only rights relevant to copyright?

Copyright law grants the author of a work further powers. In addition to the author's personal rights, there are the rights of exploitation and use of his work.

Here, for example, it is at his discretion to grant third parties rights of use to his work for financial reasons.

Copyright personality: The moral rights in detail

1. The right to publish

As part of the moral right, the right of publication belongs exclusively to the author. He alone may decide whether, how and when his work may be published.

The right of publicity covers all types of works. It also includes, for example, adaptations or translations of the original work. Publication within the meaning of Section 6 (1) UrhG occurs when a work protected by copyright is made available to the public.

The right of publication basically extends to the first publication of a creation. A work is made public when it is made accessible to an interested and typically addressed group of persons.

If the author presents his work to a small circle of selected people, this will not be defined as publication. Within the framework of the right of publication, the author has many freedoms in his decisions.

For example, he may decide to grant any rights of use to a third party even before publication. Here, the time for the first publication is then often agreed with the author in a usage agreement.

2. The right to acknowledgement

Within the framework of this right as part of the author's personal right, the author himself decides whether or not a work is to be marked with his author's designation. He also decides what this designation should look like.

He can designate his work with a pseudonym, his civil name and also anonymously. In copyright practice, it is precisely the infringement of the right to acknowledgement that often results in warnings and other steps taken by the author against third parties in the event of infringement.

For example, images from the internet must be marked according to certain specifications by authors when they are used.

The purchase of photos on online platforms is often linked to certain conditions of use and makes clear statements on how the author of the work must be identified when used.

Violations of these requirements are subject to a warning.

3. The right to protection against distortion of the work

It is also part of the author's moral right that the author can prohibit the impairment of his work by distortion or in any other way. In practice, the examination of a potential infringement of this right is carried out in three stages.

  1. First, it is examined whether there is an objective impairment or distortion of the work. Any deterioration of a work potentially constitutes an impairment of the work to be taken into account. On the other hand, even a change that would constitute an improvement from an objective point of view can be a disfigurement of the work.
  2. The next step is to consider whether the author's interests may be affected by the defacement. If the integrity of the work is violated, it must be assumed that the author's interests are impaired. A distinction must be made here between changes that are customary in the trade, such as the correction of spelling mistakes, and changes that are to be regarded as insignificant. In this case, this may be a question of interpretation.
  3. Finally, the question arises as to whether and how the interests of the author and the owner of a work can be brought into balance. In the end, the question is weighed against the question of whether the concrete infringement of moral rights constitutes a legal infringement in a final assessment. This is a case-by-case decision. In some cases, the modification of a work may be absolutely necessary, for example, to protect other legal interests from damage. If, for example, the building owner agrees to the plans of an architect because certain specifications in these plans could lead to the collapse of the building, this violation of the law may be justified. However, consideration must be given to the interests of the author and his moral rights. This means that the least severe impairment of the work must be chosen in each individual case.

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

Lengthy legal disputes can be the result. Often the author of a work has no other option than to engage a lawyer specialised in copyright law to protect his or her moral rights.

With regard to moral rights, it is particularly important to note that these rights are fundamentally non-transferable. The author is entitled to them from his or her copyright personality.

Only the author himself has a special relationship to his work. As a rule, third parties cannot enter into this legal position. However, moral rights can be inherited.

When weighing the interests of others against those of the author in the context of moral rights, the author's rights are always weaker long after his death than during his lifetime. Nevertheless, it is always a matter of weighing up the individual cases.

In moral rights, complex legal questions often arise in individual cases. This is where the experienced and specialised lawyer for copyright law is in demand.

Moral rights, how can I assert them?

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Picture credits: Kevin Jarrett | Unsplash

Marco Bennek
I started working as a lawyer in 2006 and have been advising clients in competition and trademark law for more than 10 years. Since June 2015 I have been a specialist attorney for industrial property rights and since May 2013 a partner in the firm of HELMKE Attorneys at Law and Tax Advisors and Patent Attorneys. I studied law in Hamburg, Madrid, and Wellington (New Zealand) and hold a Master of Laws (LL.M.).
Rechtsanwalt Marco Bennek
Lawyer Marco Bennek – trademark law, copyright, competition law and IT law in Hamburg
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