What are public issues and rights issues
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Copyright public concept and school
The question of the interpretation of the copyright concept of publicity for the use of works in schools has been discussed for many years, there are different legal positions and therefore a certain legal uncertainty for the user. One of the central questions is to what extent the use of the work within the closed class association represents a public reproduction, because if the reproduction is public, the consent of the person entitled must be obtained and remuneration for the public reproduction must be paid. Otherwise the use of the work would be free of consent and remuneration. A supreme court ruling on the question of the public in the class association does not yet exist in Germany.
The starting point for the legal interpretation of the concept of the public is the legal definition of public in Section 15 (3) UrhG:
“The reproduction is public if it is intended for a majority of members of the public. The public includes everyone who is not connected through personal relationships with the person who exploits the work or with the other persons to whom the work is perceptible or accessible in an immaterial form. "
According to the prevailing opinion in legal commentary literature, use within the narrow class association in school lessons is not viewed as public. Thus, for example, DVDs that were purchased privately in stores should be able to be used in actual school lessons within the narrow class group. This legal opinion is also represented by most of the ministries of education and school administrations, as well as by the federal association of municipal umbrella organizations, whereby in some cases explicit reference is made to the different legal opinions that exist.
The Federal Ministry of Justice (BMJ) has also commented on this subject upon request and published a corresponding statement on its homepage, which is gladly consulted in this context, but should nevertheless be read carefully.
Quotation from this statement: “The commentary literature concludes ... that reproductions in school lessons in close class groups are almost always not public; School events of the whole school or larger parts, on the other hand, are usually public ... So whether a performance is public or non-public is always to be decided taking into account the special circumstances of the individual case. "
In other words: there is no way to give a general answer to the question of the public or non-public school, and the Federal Ministry of Justice does not clearly define itself, but focuses on the individual case. It is therefore largely undisputed, for example, that the use of the work in schools is public if two classes watch a film together or the screening takes place in the school's common rooms. Even when using the media in courses in upper secondary schools, there are greater doubts as to whether the non-public is given. Unfortunately, the terms “school lessons” and “school” are often used synonymously without referring to the specific usage.
The discussion on the interpretation of the concept of publicity under copyright law was given new impetus by the judgment of the Austrian Supreme Court of 23.09.2008, which also had to decide on the question of whether the use of the work in a narrow class association constitutes a public reproduction or not. As a result, the court ruled that the reproduction of a work is public even within the class.
It is noteworthy that the definition of the German copyright law (see above) was also used to interpret the question of when the public is present. The Austrian Supreme Court states that attending school lessons is not voluntary and therefore does not serve to maintain personal relationships, but is a compulsory course with compulsory attendance due to the existing compulsory education. In addition, the question of whether the users of the work are connected to one another through personal relationships depends on many factors. The question of whether the public exists or not can, however, “not be linked to the coincidences of the emergence and maintenance of the aforementioned personal relationships between the students in school classes - judged by the circumstances in each individual class”. Thus, one must assume a school public and the use of the work in close class groups is also to be qualified as public reproduction under copyright law.
Of course, it must be countered that a judgment of the highest Austrian civil court cannot be transferred to Germany. Nevertheless, it becomes very clear that the same situation can also be assessed completely differently using the same legal bases and legal definitions.
In addition, German copyright law itself offers arguments for the fact that the use of works in the class association can be viewed as public. According to the principle of exception, which is the basis of German copyright law, any use of the work is generally dependent on the consent of the person entitled and, if necessary, a corresponding fee must be paid. This can be omitted if the copyright law has provided an exception for the relevant issue. Such an exception is also provided by § 52a UrhG. In Paragraph 1, No. 1, this provision permits the public to be made available for illustration in lessons in schools only for the specifically defined group of lesson participants. Should one assume that the use of the work in the classroom is not public anyway, then this exception rule would be superfluous. However, it cannot have been the intention of the legislature to create an exception regulation without any regulatory content.
Thus, arguments can be found for both assessments that are opposed to each other up to a possible supreme court decision in this matter.
Conclusion and consequences for the FWU and the distribution of its media:
The question of the public / non-public is an individual question. The general statement that the school is not open to the public is, however, incorrect. It is undisputed that the use of the work in school is not a uniform process and that there are many ways of using the media where there is a public screening.
Since the FWU produces media for the educational sector, it must cover all forms of media use as far as possible, regardless of whether it is publicly reproduced or not. The media centers and schools that acquire media from the FWU must therefore also have full rights for all common forms of use in the school.
Thus, for reasons of legal security, like other providers of educational media, we only sell our media with the right to non-commercial public presentation. Without this right, our media will not be available to media centers and schools. Teachers are therefore always on the safe side and can use our media without hesitation. The same applies to educational institutions that explicitly carry out public film screenings as part of their respective activities.
FWU Institute for Film and Image in Science and Education non-profit GmbH
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