The copyright notice, meaning, necessity, tips and patterns

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There are still a lot of myths about the copyright notice. The following article will clear up the misunderstandings and you will

  • learn what the term "copyright" means,
  • find out if the © notice is necessary at all, and
  • get practical hints and a pattern how to set it correctly.

Is copyright the same as copyright?

The term "copyright" comes from the Anglo-American world and in the "Statute of Anne" for the first time in 1710 granted book authors the exclusive right to print, reproduce and publish their works (which can be summarized in English as "the right to copy").

In principle, copyright fulfills the same function as copyright in Germany or Austria. The difference is in the original objective:

  • The Anglo-Saxon copyright, is supposed to protect the rights to the work.
  • The German (and continental European) copyright, should protect the author.

Differences and similarities between copyright and copyrights

So copyright should primarily protect the rights of the author and copyright should protect the rights to copy, no matter who holds those rights. The copyright is thus more economically oriented and differs in particular when it comes to its transfer. So there are the following differences:

  • In copyright law it is possible to dispose of the entire copyright.
  • Copyright cannot be alienated, only rights of use and exploitation can be granted (but there are exceptions; z.B. also be able to transfer the entire copyright in Switzerland).
  • In copyright law, copyright can be waived altogether, making it public domain (engl. "Public Domain")
  • In copyright, you can waive your own rights (and z.B. publicly declare not to oppose copying).
  • In copyright law, "moral rights" of the author, such as z.B. (right of attribution, protection against defacement, right of publication) often a subsequent appendage.
  • In copyright law, these privileges, known as moral rights, come before economic exploitation rights.

Harmonization: The different copyright and copyright laws are strongly harmonized worldwide, d.h. harmonized with each other. In everyday use, copyright and copypright are not very different from each other. In more complicated cases, such as z.B. in the right to remix, the differences between the more flexible but less predictable copyright law and the more predictable but more rigid copyright law become clear.

Is the copyright notice necessary?

The copyright notice used to be necessary. Z.B. copyrights had to be registered in the USA and provided with such a notice. Otherwise the rights to the work could expire. That’s why the notice is so widely used. Since April 1, 1989, copyright in the U.S., just like copyrights in Europe, arises automatically (z.B., when an author writes a book or the photographer releases the camera).

Therefore, a copyright notice is simply a finger pointing to copyright law. In other words, a label that has no influence on the origin of the copyright.

This means that the copyright notice is not necessary. However, that doesn’t mean it’s useless. On the contrary.

But before we get to the merits of the copyright notice, I’ll explain another term often used in conjunction with the copyright notice.

When is it a copyright, when is it a copyright? Basically, the governing law is determined by the country in which a work is created. Whereas many national copyright laws state that they also apply to works created by their citizens abroad. Thus, it can become quite complicated to determine the appropriate right in the case of differences. When it comes to defending copyright, it depends on the law of the country where you z.B. on its own right (so called. country of protection principle). If you use z.B. you want to assert your property rights in a photograph in the USA, then you refer to the US copyright.

What does the term "All rights reserved" mean?. "All Rights Reserved."?

Also the notice "All rights reserved" (resp. English "All Rights Reserved") used to be necessary in some countries and is now obsolete. Today it is only used to declare that you have all rights to a work.

All rights? Yes, copyright is indeed a bundle of rights. Z.B. a drawer of a picture has the right to allow others to copy it (right of reproduction) and the right to have his name written under it (right of acknowledgment of authorship) or the right that no one may disparage the picture (right of defacement).

Example: I post a photo on the Internet and write under it "All rights reserved". Then it means: "I have all the rights and no one else but me can do anything with the photo except look at it". But if I put the photo under the "Creative Commons" license, then I can’t write "All Rights Reserved" anymore. Why? Because I have allowed all other people to copy it. D.h. the right to reproduce is no longer "reserved. So are no longer "All Rights reserved".

You could then just write "Some rights reserved" or "Certain/Some rights reserved" (and refer to a more detailed explanation of what those rights are). This is how the z.B. on Flickr from:

Advantages of the copyright notice

Even if the copyright notice is not necessary, there are four good reasons for it:

  • Presumption of authorship
  • Moral deterrent
  • Compensation
  • Criminal liability

Presumption of authorship

In principle, the author must prove that he created the work. However, there is a relief in § 10 Copyright Act (UrhG)_

§ 10 Copyright Act – Presumption of copyright or legal ownership

(1) Whoever is designated as the author in the usual manner on the copies of a published work or on the original of a work of fine arts shall be presumed to be the author of the work until proven otherwise;

Accordingly, the person who is designated as the author on the work in the "usual manner" is presumed to be the author. Therefore z.B. Always sign images. Otherwise, the painter would always have to prove that the painting originates from him (e.g.B. by witnesses who have seen him paint).

However, a "©" sign cannot necessarily suffice for such a presumption of the originator. For this purpose the name of the author must be included. Preferably with a date to indicate when the copyright was created.

Limitation of the presumption and proof to the contrary: Important, because this is often confused – only the author is presumed, not the copyright protectability. Z.B. a copyright notice does not turn a standard website into a protected work of art. In addition, the presumption can be quickly invalidated. Who z.B. who writes his own name on a photograph will have no chance in court against a photographer who can present the high-resolution image file.

Compensation of misconception and clarification

Many, especially younger, but also professional Internet users, are subject to a common mistake. They think that content not marked with a copyright notice may be used freely.

In their case, the © sign serves to compensate for their mistaken belief and to provide clarification. In this context, it is advisable to additionally point out the consequences of legal infringements.

Compensation for damages

If their works are used without permission, the copyright holders may demand compensation from the infringers (§ 97 UrhG). However, the prerequisite for damages is that the infringer has acted culpably, i.e. at least negligently. Negligence is committed by anyone who violates the law despite clear indications to the contrary. D.h. whoever copies a picture in spite of a copyright notice will hardly be able to plead ignorance. On the contrary, there is even a deliberate violation of the law.

Doubling of damages in the absence of a copyright notice: Anyone who not only uses an image without permission, but also fails to indicate the copyright notice or even removes it, must pay a surcharge on the damages of up to 100%.

Criminal consequences

According to § 106 UrhG, anyone who intentionally reproduces, distributes or publicly reproduces (= publishes on the Internet) a work without authorization is liable to a custodial sentence not exceeding three years or to a monetary penalty. So also here the copyright notice helps to accuse the infringer additionally also a criminal offense.

This provision is not applied too often in practice, since one is usually interested in claims under civil law, such as compensation for damages. But in the context of negotiations about the amount of damages, the argument can be very helpful.

After the advantages are known, it is now a question of the practical implementation of the copyright notices.

Where can a copyright notice be placed on a website?

The notice should be placed as close to the work as possible. Therefore copyright notices z.B. placed graphically on or as text below the images. A common place is also the bottom of the web page or the imprint.

It is also recommended to mark images and photos with a digital watermark. This reference is not obvious, but it is very practical for the later proof of authorship.

Should one better write "copyright notice" or "copyright"?

Since one must also reckon with English-speaking visitors, I recommend to include the English term at least in brackets or the ©-sign. Moreover, many understand the term "copyright" rather, than "copyright". Legally, both spellings are treated equally.

Must the correct name be indicated or is a pseudonym sufficient?

Whether the real name or a pseudonym is used is irrelevant. The main thing is to be able to prove that the pseudonym belongs to you. This way I could publish my text as Thomas Schwenke or (if I would use the pseudonym) as TheLegalPainter compose.

Is it necessary to indicate the date?

The date is important. This shows when you have created a work. Not so much with photos, but with text or copyrighted websites, someone else might claim their work was created earlier.

A date in a central place, e.g.B. in the imprint, applies only to the static parts of the site. D.h. for the graphics, design and texts that do not change. This is not a big deal, since dynamic content is regularly dated anyway. Z.B. Blog entries.

Proof of authorship by notary and registered mail: Even if often spread as an assumption, a notarial deposit is not a prerequisite of copyright protection or its proof. At best, the deposit can make it easier to prove when they were created. Such a proof may make sense for a once written manuscript of a book of fiction. However, for works that are updated more frequently or, like photos, are created continuously, it seems at least impracticable. Especially since the proof can also be provided by statements of witnesses (e.g.B. (e.g., employees or family members), submission of creation versions, additional photos of a series of images, or higher-resolution versions can be provided. A registered letter sent to oneself, on the other hand, has little probative value, contrary to a widespread myth. It only proves the receipt of the envelope, but not of the content.

What should be the scope of the copyright notice?

If one already places a copyright notice, then it should be as informative as possible. Concrete examples are more obvious, so I recommend to mention the typical copyrighted content as well, z.B.:

© Copyright 2017 – All contents, in particular texts, photographs and graphics are protected by copyright law. All rights, including reproduction, publication, adaptation and translation, remain reserved, [NAME].

Is the addition "All rights reserved" necessary??

The reference to "All rights reserved" is less relevant in everyday life, but very important in the business world. If a licensee invokes its exclusive rights in summary proceedings before a court (so called. preliminary injunction proceedings), then he can only rely on the reference if it is clear from it that he has reserved all rights (s. OLG Hamburg, 27.07.2017 – 3 U 220/15 Kart).

Is a reference to the possibility of permission to use recommended ?

M.E. it does not hurt, if only to show the interested parties that there is a legal way to get the desired content. Therefore the hint is recommended.

Should one refer to releases under the "Creative Commons" license?

Licenses issued should be pointed out. Otherwise users will be confused, resp. the Creative Commons license could be interpreted more broadly than intended. So they could cover a whole website, instead of just individual images. Therefore, the reference to such an exception is recommended:

Content published under the "Creative Commons" license", are identified as such. They may be used according to the stated license terms.

Is a reference to the consequences of violations useful?

To support the moral deterrent function, I recommend pointing out the consequences. This may sound drastic, but many users do not even know what consequences they are facing. In addition, the consequences do not have to be. In the case of infringements clearly committed in ignorance, a reference to the copyright infringement by e-mail may also be sufficient.

Who violates the copyright (z.B. Copies images or texts without permission), is liable to prosecution. §§ 106 ff UrhG punishable, will also be warned with costs and must pay damages (§ 97 UrhG).

What if not all the content of a work comes from one author?

For websites that z.B. contain works of guest authors or foreign images, z.B. under the "Creative Commons" license would be the indication "The copyright of all content belongs to XY" wrong.

At this point, an "insofar as" passage is recommended: "… as far as not explicitly marked otherwise". The other marking is z.B. the name of the respective author above the article.

Sample of a copyright notice

The following copyright notice observes the above notes and recommendations. It can z.B. being used in a book or on a website. Parts that need to be adapted are in brackets. The reference to the free license is only required if a free license is used.

© Copyright 2017 – Copyright notice

All contents of this [INTERNET OFFER/BOOK/WORK>, in particular texts, photographs and graphics, are protected by copyright. Copyright is owned by [NAME] unless otherwise expressly indicated. Please ask [ME/UNS], if you want to use the contents of this website.

Content published under the "Creative Commons" license, is marked as such. may be used according to the stated license conditions.

Anyone who violates copyright (z.B. Images or texts copied without permission), makes himself gem. If the user violates §§ 106 ff UrhG (German Copyright Act), he or she will also receive a warning with costs and must pay damages (§ 97 UrhG).

Follow-Up

I hope you now feel that you really know everything about the copyright notice. You can find out more about copyrights and image rights in the upcoming episode 50 of Legal Notice.

In addition, I like to keep you up to date with my newsletter on marketing, data protection and contract law or on Twitter and on Facebook, legally.

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