“An Evening with Marlene Dietrich”

Decision of the Federal Supreme Court (Bundesgerichtshof) 21 April 2016 – Case No. I ZR 43/14
  • TRIPS Agreement, Art. 3(1), second sentence; WIPO Performance and Phonograms Treaty, Art. 4(1); Rome Convention, Arts. 2, 4, 7, 19; Copyright Act, Secs. 78(1) No. 1, 125(5); Code of Civil Procedure, Sec. 32
Decision • Copyright Law Germany
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  1. a)

    Under the TRIPS Agreement and the WIPO Performances and Phonograms Treaty performing artists do not receive the benefit of intellectual property rights that go beyond the minimum rights provided for in these agreements and subsist solely in accordance with the national law of the respective Member State. No exclusive right arises from these agreements for the performing artist to make an audio-visual fixation of his performance available to the public.

     
  2. b)

    If a performing artist has given his permission for his performance to be incorporated in a visual or audio-visual fixation, he can according to Art. 19 of the Rome Convention no longer rely on the minimum rights provided for in Art. 7 of the Rome Convention, but he can indeed continue to invoke the principle of national treatment regulated in Art. 4 of the Rome Convention.

     
  3. c)

    The national treatment that is to be granted to performing artists according to Art. 4 of the Rome Convention is, as stipulated in Art. 2(2) of the same Convention, not limited to the minimum rights specifically guaranteed performing artists in Art. 7 of the Rome Convention. Rather, the contracting states are obliged to additionally grant performing artists the rights provided for in their national law.

     
  4. d)

    National treatment, according to Art. 2(1) of the Rome Convention, is to be understood as including treatment that the contracting state on whose territory protection is claimed grants under its national legislation after the conclusion of the Rome Convention. The national treatment stipulated by Art. 2(2) of the Rome Convention therefore includes the exclusive right of the performing artist under Sec. 78(1), No. 1, of the Copyright Act, which at the time of the conclusion of the Rome Convention was not yet regulated by law and as yet unknown, to make his performance available to the public.

     
  5. e)

    In the case of an alleged infringement of copyright or related rights by the making available to the public of the subject matter of protection via an Internet page, the place in which an unlawful act is carried out within the meaning of Sec. 32 of the Code of Civil Procedure is situated within the country when the rights asserted are protected within the country and the Internet page is publicly available within this country (among others); it is not necessary, on the other hand, for the Internet page to be intended to be accessible in this country (as well) (Federal Supreme Court, decision of 29 April 2010 – I ZR 69/08, IIC … para. 14 – Thumbnails I (Vorschaubilder I)). …

     

Keywords

Performing artists Consent Scope of copyright protection Principle of national treatment Audio-visual fixation Making available to the public 

Copyright information

© Max Planck Institute for Innovation and Competition, Munich 2017

Authors and Affiliations

  • TRIPS Agreement, Art. 3(1), second sentence; WIPO Performance and Phonograms Treaty, Art. 4(1); Rome Convention, Arts. 2, 4, 7, 19; Copyright Act, Secs. 78(1) No. 1, 125(5); Code of Civil Procedure, Sec. 32

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