Monday 4 April 2011

Much Ado About Kindergarten - Part 2

Apologies for the delay in posting the promised rundown of the proposed changes to the German Copyright Act – sometimes life really gets in the way of one’s plans... Well, here it is now:

The aim of the draft bill submitted to the Bundestag by “the left party” (“DIE LINKE”) is to extend certain copyright exceptions and limitations to nursery schools (BT Drucksache 17/4876,

Public communication of a published work

Currently, s. 52 subs. 1 sent. 1 German Copyright provides that the public communication of a published work shall be permissible at events that cumulatively meet the following requirements:
- they serve no gainful purpose on the part of the organiser,
- spectators are admitted free of charge, and
- the performers, if any, do not receive special remuneration.

According to s. 52 subs. 1 sent. 2, this is usually subject to payment of an equitable remuneration, but s. 52 subs. 1 sent. 3 contains a number of exceptions. Events by the Welfare Services and school events are exempt from the obligation to pay equitable remuneration, on condition that in accordance with their social or educational purpose they can only be accessed by a specifically limited circle of persons. Not all categories of works are covered, though. S. 52 subs. 3 provides that public stage performances and broadcasts of a work and public presentations of cinematographic works always require the consent of the copyright owner. The draft bill extends the above exception to events by child day-care centres and centres for the after-school care of pupils.

At first glance, such events appear to be similar to school events, which would militate in favour of the proposed amendment. However, things are a bit more complicated. School attendance is both compulsory (at least for nine or ten years) and – more crucially – free of charge. Nursery school attendance is not compulsory, but neither is it free. Even most state-run nursery schools charge fees, e.g. €150 per month per child. While I’m aware that this is probably not enough to recoup costs, let alone make a profit, I still wonder if in respect of events at such nursery schools, spectators (i.e. the children) can be deemed to be admitted free of charge for the purposes of s. 52 subs. 1 sent. 1, and if the public communication might serve a gainful purpose on the part of the organiser (i.e. the nursery school). Does anyone have any thoughts on this?

Reproductions of small parts of printed works or of newspaper articles

The second change proposed by the draft bill concerns s. 53 subs. 3 sent. 1, according to which it shall be permissible to make or cause to be made copies of small parts of a printed work or of individual contributions published in newspapers of periodicals for personal use
- in teaching, in non-commercial institutions of education and further education or in institutions of vocational education in the quantity required for one school class; or
- for examinations in the above institutions as well as for State examinations and examinations in schools and universities in the required quantity. The draft bill extends this exception to education in child day-care centres and in centres for the after-school care of pupils.

I have no objections to this. It should be pointed out, however, that this exception only concerns the making of copies of small parts of a printed work or of newspaper articles. S. 53 subs. 3 sent. 2 (and the proposed sent. 3) expressly stipulates that the reproduction of a work that is intended for teaching purposes at schools (or purposes of education in nursery schools) shall only be permissible with the consent of the copyright owner. Consequently, copying a whole work or substantial parts of a work is still subject to a licence and nursery schools may not, for instance, make free copies of sound recordings either.

Reproduction of graphic recordings of musical works and inclusion in private copying levy

Arguably the most controversial amendment proposed by the draft bill relates to the reproduction of graphic recordings of musical works. At the moment, s. 53 subs. 4 lit. a) provides that reproduction of such works shall only be permissible without the consent of the copyright owner
- if carried out by manual copying;
- for the inclusion in a personal archive, if and to the extent that reproduction is necessary for this purpose and if a personal copy of the work is used as the model for reproduction; or
- for personal use if the work has been out of print for at least two years.

The draft bill adds a second sentence to this that reads as follows: “In the cases of subsection 3, number 3 [i.e. education in child day-care centres and in centres for the after-school care of pupils], by way of derogation from sentence 1 lit. a), the reproduction [of graphic recordings of musical works] shall be permissible without the consent of the copyright owner.”

So there we have it: a special exception just for nursery schools! Schools, universities, music schools, private music teachers, the Welfare Services, choirs, the YMCA, you, me – everybody has to obtain a licence, only nursery schools get a free ride. I find that very peculiar, to say the least.

Finally, to make up for this new exception to a certain extent, the draft bill proposes to amend s. 54 and 54a to include graphic recordings of musical works in the private copying levy. In other words, copyright owners are supposed to receive equitable remuneration for the nursery school copies from the producers and importers of reprographic appliances such as photocopiers and scanners.

To my mind, this is all quite messy. The reason why the current exceptions do not include graphic recordings of musical works anymore – they did until 1985 – is that there was a dramatic rise in the number of copies due to the advances in reprographic technology. Choirs and other groups would not buy a copy of the work for each member, but only buy or even borrow a single copy and then make the required number of photocopies. Since the production of sheet music is expensive, the legislature deemed this unacceptably detrimental to authors and other copyright owners and prohibited the reproduction of graphic recordings of musical works except in the abovementioned cases (BT Drucksache 10/387,

Cynics might say that in practice probably nothing much changed and choirs (and kindergarten teachers...) continued their copying frenzies regardless or even in ignorance of the law (one has to admit that, being an exception from an exception that again has exceptions, it is rather complicated). Prosecution would be both impracticable and unpopular. Perhaps, then, it would be better to create a proper private copy exception for sheet music and give composers and lyricists a fair share in the private copying levy. After all, nowadays it is possibly even easier to copy a sound recording than to copy sheet music, but there is no exception from the exception for sound recordings. On the other hand, that would be one more stone paving the way to a "culture flat rate", and I'm not sure that I should like that.

I'll keep an eye on the fate of the draft bill while I continue to make up my mind...

The translations of the relevant provisions from the German Copyright Act are a combination of the WIPO translations ( and my own.

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