Anhortung in the Federal Ministry of Justice about new barrier for science, teaching and research in the online context
On the 15th. October 2002 invited the Federal Ministry of Justice to anair of a certain aspect of the upcoming copyright reform: the new bound for science, teaching and research in the online context. Such a scheme is significant for various affected persons from different reasons. For users, ie V.a. The scientists, teachers and schools / students facilitates them access and use protected materials using information technologies. For the rightholder, at least she means a mine at control possibility, u.U. also a reduction in value chip of your works.
The consequences of the legislature ultimately are really predicted, is violently controversial in view of the above expected expectation. The hearing should serve to collect the different collect for this purpose. For example, more representatives of business, science and educational and research associations were found in order to explain their viewpoint to this aspect.
In the government design for the law on the regulation of copyright in the information society of 31. July 2002, for the first time, a proposal for the introduction of a new § 52a UrhG included. According to this provision, an derogation from copyright privacy rights shall apply if works (apart from computer programs) are used in class or for research purposes. The rule differentiates two different trap and two different forms of use after the proposal of the BMJ:
According to Alternative 1, it is intended to be properly admitted to illustrate in the classroom to the teaching participants (and only this) and alternatively 2 a determined-declared circle of persons for their own scientific research already relevant works, as far as this is to the respective (lesson – or research) should be offered and no commercial interests serves. In addition, the preparation of duplications necessary in this context are necessary in this context and to be offered.
In German, the substantially the following: Nr. 1 thirst of teaching protected works, such as texts or pictures that are needed in class, scan (as far as necessary) and then spend the view of the schools or students on computers. North. 2 can in this way researchers (and in turn only this) works are made accessible.
Both cases have different effects. Due to the teaching privilege, both the license (or consent) and the obligation to pay attention, which was measured by the limits of the limits – unrestricted use. The scientific privilege, on the other hand, lit only the license obligation. However, uses, which are covered by this, however, a duty to pay a reasonable consumption. This is to be collected by collecting societies.
The position of the legislator
In an opinion of 17. September 2002, the Federal Council became in detail and very critical about the proposal of the Federal Government to § 52a Urhg. In contrast, it has been stimulated here to restrict the barrier on workparts, as it is also in an existing barrier, § 53 ABS. 3 no. 1 urHG, is regulated. The latter allows the preparation of copies of small workparts for school (not universitent) lessons. The Bundesrat hold it for inconsistent, multiplications of whole works only in connection with their online playback (as according to the new § 52a Urhg), but not for the purpose of a common recycling (approximately distributing copies). Especially with regard to works, which are specifically created for teaching use (example of school books), the Council sees considerable dangers in a fully freedom of copying.
Also fundamentally negative, the Federal Council shows itself against the free of speech for teaching use according to alternative 1 of § 52a Urhg. Such a cutting restriction of the interests of the right holders is neither bid nor appropriate or appropriate, not least measured by other recovery methods.
In the opinion of Elmar Hucko, the spring-carrying department leader of the Ministry of Justice for the Copyright Reform was already made clear in the introduction of Elmar Hucko, the fulfillment of the Department of Justice for the Ministry of Justice, which. Several opinions, u.a. To this point have already been submitted by the stakeholders. He subdivided the course of the event from the outset in opinions "Pro-barrier" and "Contra barrier".
Only on the edge should be pointed out that Hucko also concentrated on time requirements – of course, subject to the Uncertainties resulting from the upcoming Minister of Justice – of the BMJ to implement the law. Imagine the first reading in the Bundestag already hold in mid-November 2002. After the obligatory consultations and hearings in the rules, the last reading is still to be stopped before Christmas. The submission to the Federal Council should be spat at the end of February 2003 at the latest. You expect with a entry into force about 1.4.2003.
School yard piracy and criminal energy of the teaching staff: the criticism of the stakeholders of the content industry
In the first part V weather.a. The stakeholders of the content industry vehemently against the planned barrier rule. The range of those present ranged from the Borsenverein of the German bookstores, over textbook publishing them, the music and film industry, some collecting societies to the IT industry association BITKOM.
The credit of all statements from this direction was uniform: the barrier was inexhaustible and leafed unacceptable negative consequences. It is inappropriate, conditioned the existence of the industry concerned (here v.a. the book publisher) and authors (which even in the incorporation did not include, at least not directly,. Last but not least, she was not necessary in terms of preserving the general interests in science and research and without further renounceable. It was therefore largely uniform – more or less, and reprinted – the demand for a complete deletion is uplowered. A surfunction, which is required by the Federal Council, are not sufficient, as there is no conceivable possibility to design the provision of interest in terms of interest and convey.
Above all, the stakeholders of the (school) book publishers showed himself excited about that with the barrier of their products "the primary market" be withdrawn. For example, goods to be fired that schools of speeches distributed in the form of CD-ROMs were only a single copy to acquire only a single copy and then this copy has been made available to all schoolers on an intranet. Based on the presentation of this and similar horror scenarios, it became prophecy that investments in teaching media are heavily accumulating, threatening existence of publishers and thereby sustainably faded the German training qualitat. With indications of the effects that had such a development for the cutting of German Schuler at the next PISA study, was also not saved.
Even further representatives of the film industry went. The study barrier legitimize in coarse circumference damaging behavior in the use of film works. With the barrier will be the "Schoolhof piracy" Feeder made, because it should be expected that films stored on school networks stored everyone and – if unauthorized – were then downloaded and rendered.
Furthermore, it was also to flare that the teachers were created in the future films, which they then allowed to perform the schoolers in the lesson without having to obtain approval or paying. That’s how the movie could "Minority Report" copied illegally by the teacher and then showed the schoolers. On the objection, this is in no case from the formulation "As far as this is required for the lesson" In § 52a Urhg covered, the speakers pointed to one "Substantial criminal energy of the teaching staff", that would not pay attention to the limits of privileging expectations. Well-hollowing you like this derailment as an indication of one "Lack of illegitimate awareness of teachers due to legal uncertainty" Interpret, if the choice of the speaker clearly did not go in this direction.
Legally, the opponents of the barrier agreed that these engage in the owners’ interests of the author. This applies V.a. For the lack of tempering requirement for the lesson use. The legislation that stands out on the fact that multiples for teaching use is already covered by the device and empty media levels, tie the scope of the expected revenue pits. Already at this point, it should be noted that the boundary of the barrier also held the freedom of uniqueness in view of the case-law of the Federal Scarf Court in relation to such barrier regulations for.
Not extension of individual powers, but compensation of the interests
On the part of the commutations, the votes were expected to be less numerous. In addition to the members of the Ifross, some research associations and V were.a. the libraries represent. From this direction, it was pointed out that the barrier for the functioning of teaching and research was necessary. The alternative – acquisition of single licenses for every usage process – is equally practicable in modern educational forms such as e-learning as in the incoming knowledge transfer.
Example for an expected practice without barrier was called that a lecture using intelligence material significantly more teaching at students and schoolers can achieve as a purely acoustic monologue. The use also protected material is therefore V.a. very valuable in teaching. Rights for such uses should not be obtained in the day-to-day teaching. The libraries were also no longer able to fulfill their task for research and teaching, they were referred to the costly and expensive path of single licensing.
Not least, the fact that the upcoming introduction of the absolute online right for industry and authors is an expansion of individual powers. The regulatory application of copyright areas, a compensation of the interests of all involved and v.a. General Interest in Education and Science. Against this background, for a balanced interest weight is a barrier such as § 52a Urhg urgently.
If such it has not been introduced, strong circumcisions of the area were so far free use, so such actions that do not attribute to the copyright in accordance with applicable law, the result. Were z.B. in a completed data network through several members of a research team works, Z.B. Scientific treatises, shared, this would be possible with the case that all members of a workshop see in a book, quite comparable. The reputation of a book, however, is not protected by copyright law. That "publicly" About a data network is in such cases pure equivalent for the common availability of a work. The only difference between the situations insight in the space near the scientist. This aspect is copyrightfully irrelevant, the "Remote cooperation" By contrast, as a scientific future model wish-value. As far as the industry seems to be interested in the cementation of certain market and distribution forms, these are also not interested in interest that would have to be considered by copyright.
Agreement was still pointed out by representatives of the federal government that the barrier follows the requirements of the practical label. It does not make sense to arrange prohibitions if they were not followed and unbalancable. The effect made in this way in a very conscious legislation was counterproductive and a pity the interests v.a. the authors and industry. On the other hand, the right holders were not helped for the uncontrollability with their prohibition law.
Much unexpectedly has not been presented in the appeal to what has followed the history of copyright reform. It became very clear once more, how controversial is one of every point of reform, even if that – lack of recognizable economic relevance for the right holders – is not always completely intended.
Whether the film industry (and meant are not the teaching film publishement) in view of the very close restriction of the barrier on uses for the purposes of teaching and research really flurred that these are legitimized the download and show full films for whole universities, is highly doubtful. Also, the releasing of the publishers, schools have been trained to scan entire books, put them on the server and provide on all times of the school cooperation for unrestricted use on their computers, but seems to be said – slightly exaggerated. Not only that the barrier does not approve this – it will not be made.
On certain commercials, V.a. Those who serve solely research and teaching purposes became a barrier such as § 52a UrHG certainly economic impact. Nor is seriously denied that teaching and science were considerably benefiting from freedom from single licenses or that – otherwise printed around – the possibilities in the field of education and research can be accessed to the potential of the new media, absolute absolute Rights of the content industry could be cropped greatly.
Who are in the context of the legislative or better of the "Legal finding process" Priority question must be: "Which consequences can be predicted realistic manner and to which mab seem to be remarkable against the background of the legitimate interests of the general public?"
Strictly distinguished in this assessment between the right of prohibition, with which access to content can already be prevented, and pure procurement claims that only create an economic restriction. Meanwhile, the controlability of the right and other practical requirements for a legal design should also be considered.
The employees of the Federal Ministry of Justice The highest difficult task is not only the decision on these ratings, but also their linguistic realization in a legal text. In view of these difficulties, it is highly praiseworthy that one obviously does not want to go the path of the slightest resistance, but instead tries to find a for all portable compromise. Value is also the clear signal of the Ministry, one will measure significant importance. There is a reason to hope that their original existence is no longer for the disposition from the perspective of the government. Alone the design of § 52a Urhg remains so on to expect tension.