Notes on german copyright law with a focus on teaching

German copyright law protects a person's personal intellectual creations as "creative works". These works must be expressed in a perceptible form - pure ideas are therefore not eligible for protection - and must have a creative level. This means that the creative achievement must go beyond a mere degree of individuality and intellectual achievement. Works eligible for protection include, in particular, linguistic works such as written works, speeches and computer programmes, musical works, photographic works such as photographs and representations of a scientific or technical nature such as drawings, plans, maps, sketches and tables.

The author is entitled to all rights of use to the work. This includes the right to publish, reproduce, distribute and publicly reproduce the work.

However, the author may grant another person the right to use the work in individual or all types of use. This right of use may be granted as a simple or exclusive right and may be limited in terms of space, time or content.

If you want to use the protected works of other authors, you may only do so within the framework regulated by the German Act on Copyright and Related Rights (Urheberrechtsgesetz - UrhG) or you need the permission of the author in the form of a transferred right of use. If the copyright to the work has already expired, which is usually the case if all those involved in the work have been deceased for more than 70 years, the work is free to use.

The use of works protected by copyright is possible in the following ways:

(1) Conclusion of a licence agreement with the author, which allows the use under the desired conditions or

(2) an open licence granted by the author (e.g. Creative Commons licences, GNU General Public Licence (GPL) or Digital Peer Publishing Licence (DPPL)) or

(3) so-called Open Access, in which the author makes scientific publications available to the general public free of charge via the internet - for example on a website, in an online journal or in a so-called repository - or

(4) legal standards of permission (e.g. for education and science, i.e. teaching, learning and research) or

(5) Right of quotation under the conditions according to Section 51 UrhG.

If you create a copyrighted work yourself, you are the owner of the copyright. If you have created a work jointly with several persons and the shares cannot be exploited separately, you are a co-author (Section 8 (1) UrhG).

However, if applicable, the exclusive right to use the work belongs to the university as your employer if you have created the work as an official task (Section 43, 69b UrhG). Something else only applies if different agreements have been made in the employment or service contract or if the author performs an independent academic activity at the university. Professors, visiting professors and lecturers work independently and without instructions. Due to the freedom of science and research guaranteed in the Basic Law (Art. 5 (3) GG), they own all rights to their copyrighted works, such as the teaching materials or study modules they create. They are entitled to the copyright protection described above, including the legal standards of permission for research and teaching for their works.

If, according to the above, you are the owner of the copyright and all rights of use, and if third parties are to be allowed to use your works, it is advisable to define conditions of use for the copyrighted work, i.e. to formulate or choose a licence with rights of use. In terms of free access to science and teaching, open licences are an absolutely welcome model. In any case, you can influence whether use is possible beyond the legal minimum and what the underlying conditions are.

When creating video or image material, the "right to one's own image" as part of the general right of personality according to Section 22 KUG (Gesetz betreffend das Urheberrecht an Werken der bildenden Künste und der Photographie) must also be observed. On the basis of this right, images may generally only be disseminated or publicly displayed with the consent of the person depicted. Section 23 KUG stipulates exceptions where consent is not required, e.g. pictures in which the persons appear only as an accessory next to a landscape or other location, or pictures of meetings, processions and similar events in which the persons depicted have taken part. In the context of audio and video recordings, please also pay urgent attention to all matters relating to the protection of personal data (data protection).

If a student creates a work protected by copyright, e.g. project report, graphics, photos, seminar, Bachelor's or Master's thesis or dissertation, he/she is entitled to all rights to the work as the author. This means that you may not use the work without transferring the student's rights of use. This also applies to making a project report or the master's thesis available on the homepage, which is not permitted without the student's consent.

In teaching, the question usually arises as to whether third-party works protected by copyright can be used for teaching and, if so, to what extent.

The legislator has regulated the use of copyrighted works in the fields of education and science in the Copyright Knowledge Society Act (Urheberrechts-Wissensgesellschafts-Gesetz - UrhWissG), the provisions are found in Section 60a ff. UrhG.

Earmarking

Works protected by copyright may be used in accordance with Section 60a UrhG to illustrate, supplement or deepen teaching. This also applies to the period before and after lessons or before and after an examination - even outside the university. Use for entertainment purposes and commercial use are excluded. The reference to teaching, lesson and examination content must therefore be guaranteed for the period of use.

Forms

• First of all, duplication means "copying". This includes both analogue and digital copies, e.g. scanning, downloading from the internet or uploading a file to a server.
• Distributing means giving a copyrighted work or a "copy" of it to others, e.g. giving printed teaching materials to students.
• Making available to the public is - generally speaking - when works are made available to the public online, i.e. on the internet.

Communication to the public by other means includes, for example, streaming or broadcasting content at a distance.

Object of use and scope

According to Section 60a UrhG, up to 15% of a published work may be used as described in teaching and learning. You can use the numbered page numbers or the total minutes of a film as a guide to calculate the permitted volume.

However, there are exceptions according to Section 60a (2) UrhG: The complete use of a work for named teaching purposes is permitted in the case of

• Illustrations and individual articles from the same journal or from scientific journals,
• works of small size (i.e. printed works up to 25 pages, films and musical works up to 5 minutes) and
• out-of-print works.

In contrast to academic journals, ­only 15% of the work from daily newspapers and popular magazines may be ­used. However, the following also applies here: If the daily or popular journal is out of print, it may be used in its entirety.

However, Section 60a UrhG also lists types of use that are excluded from the authorisation of use. The following types of use are explicitly excluded in Section 60a (3) UrhG:

- Reproduction by recording on a visual or audio carrier and communication to the public of a work while it is being publicly performed, presented or shown, e.g. the recording of a cinematographic film during a public performance.

- Reproduction, distribution and communication to the public of a work which is suitable, intended and appropriately marked exclusively for teaching in schools, i.e. use e.g. of textbooks at universities may be permissible to the extent mentioned above, as well as

- Reproduction of graphic recordings of works of music (e.g. musical scores), unless it is necessary for making them available to the public, e.g. a scan of musical scores is permissible for the purpose of illustrating teaching.

This exclusion only applies if licences for these uses are readily available and findable, correspond to the needs and particularities of educational institutions and they permit the uses. This means that insofar as no licence can be acquired, the types of use under Section 60a (3) sentence 1 UrhG are not excluded.

Users and recipients

Copyrighted works may be made available to the following recipients to the defined extent in accordance with Section 60a UrhG:

• All teachers and participants of the respective course, including guest students;
• all teachers and examiners of their own educational institution, regardless of the type of employment (i.e. also guest lecturers, external examiners);

third parties, as far as this serves the presentation of the teaching, of teaching or learning outcomes at the educational institution. This therefore also applies if it is purely a matter ­of presenting the teaching unit or learning outcomes. ­This means, for example, that PowerPoint presentations can be posted on the university's website or learning outcomes can be presented at events.

Creating collections of teaching and learning media

Section 60b UrhG deals with the production of collections of teaching and instructional media. For such collections, it is permitted to reproduce, distribute and make publicly available up to 10% (instead of 15%) of a published work, however with the restrictions explained above (e.g. sheet music, live recordings) and extensions (out-of-print works, works of small volume, contributions and illustrations from scientific journals).
According to Section 60b (3) UrhG, teaching and instructional media are collections that unite works by a large number of authors and are suitable, intended and marked accordingly exclusively for illustrating teaching and instruction at educational institutions (Section 60a UrhG) for non-commercial purposes. This includes, for example, lecture notes and books by university teachers for students.

Open Educational Resources (OER)

Open Educational Resources (OER) are educational materials of any kind and in any medium that are licensed under an open licence. Such a licence allows free access as well as free use, editing and redistribution by third parties without or with minor restrictions. The authors themselves determine which rights of use they grant and which rights they reserve.
Open Educational Resources can include individual materials, but also complete courses or books. Any medium can be used. Curricula, course materials, textbooks, streaming videos, multimedia applications, podcasts - all these resources are OER if they are published under an open licence. So check which licence has been granted by the author and how far-reaching your rights and obligations of use are. You can find more details on this in the terms of use or licence conditions on a website, for example.

The Service Centre for Research Data Management at the Media and Information Centre (MIZ) has created a legal topic block for the area of research data with detailed information on copyright in research.
Information on the topic can be found here.

When using copyright-protected works of third parties, we ask you to observe the underlying terms of use and licences in each individual case and to use the works only within the legally permissible scope. Please also bear in mind that the use of some works may also affect other third party property and ancillary rights, such as data protection. If you have any further questions, please contact the relevant person at Leuphana:

For further information on copyright, please contact Leuphana's legal department. Imke Etzien is responsible for copyright issues.

For data protection issues, you can find in-depth information, materials and FAQs in the intranet area Data Protection. The data protection management will be happy to support you in designing your projects in line with your needs and in compliance with data protection law. The data protection officer Thies Ove Plath also provides information on legal and internal data protection requirements and standards and monitors compliance with them.

Federal Ministry of Education and Research (BMBF) (ed.) (2020), incl. examples from practice and detailed information on open licences: „Urheberrecht in der Wissenschaft. Ein Überblick für Forschung, Lehre und Bibliotheken“.

Wording: Act on Copyright and Related Rights
https://www.gesetze-im-internet.de/englisch_urhg/index.html