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Copyright Act for the German Empire (1870)

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Primary Sources on Copyright (1450-1900)

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Identifier: d_1870

 

Commentary on the Copyright Act for the North German Confederation and the German Empire

Friedemann Kawohl

Centre for Intellectual Property Policy & Management, Bournemouth University, UK

 

Please cite as:
Kawohl, F. (2008) ‘Commentary on the German Imperial Copyright Act (1870)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. The first copyright act for the German Empire

4. An overview of the provisions

5. The 1870 Act in historical perspective

6. Requirements for amendments set by Supreme Court (Reichsgericht) decisions, and the Berne Convention

7. References

 

1. Full title
Statute concerning author's rights to works of literature, illustrations, musical compositions and dramatic works. Of 11 June 1870, as published in: Bundesgesetzblatt des Norddeutschen Bundes 19 (1870): 339-353.

 

2. Abstract
The Copyright Act of 1870 is the most important piece of copyright legislation enacted in Germany between the Prussian Act of 1837 (d_1837a) and the Copyright Act of 1901. Initially discussed and enacted within the context of the North German Confederation (1867-71), it was adopted by the new German Empire on the same day that the latter was officially constituted on 1 January 1871. The provisions were confined to literary, musical, dramatic works and printed images, whereas highly contested issues such as "works of art", "industrial designs" and "photography" were left to be regulated later by the Copyright Acts of 1876 (d_1876). The rights granted to authors were in principle limited to protection against unauthorised reprinting. Thus, any protection of derivative works had to be justified by classing them together with "reprints". This commentary focuses on the constitutional underpinning of the Act, gives an overview of the main provisions, and demonstrates how the decisions of the German Supreme Court (Reichsgericht) soon came to undermine the strict adherence to the basic concept of "reprinting" and thus paved the way for a modern binary concept of "work" and "author", as laid down in the Copyright Act of 1901.

 

3. The first copyright act for the German Empire
This Copyright Act was adopted on 11 June 1870 within the North German
Confederation, a federal state that had existed since 1866 under the leadership of Prussia after its victory over Austria in the Seven Weeks' War. Article 4 of the constitution of the North German Federation (promulgated on 16 April 1867 and enacted on 1 June) had enshrined competence for copyright and patent law matters within the federal legislation.[1] Shortly before the Copyright Act was due to come into force on 1 January 1871, the Confederation had, as a result of the November Treaties of 1870, merged with Grand Duchy of Hesse and the states of Baden, Württemberg and Bavaria, its allies in the Franco-German War. In a new constitution, which was also enacted on 1 January 1871, competence for copyright and patent law was again enshrined at the federal level (Art. 4), and, in accordance with Art. 80, the Copyright Act of 11 June 1870 was explicitly adopted for the whole German Empire together with a number of other statutes.[2]

 

Thus, the Copyright Act for the North German Confederation was, in fact, from the very first day that it became effective, a Copyright Act for the German Empire - although the latter was then still referred to by its federal name (Deutscher Bund) until on 16 April 1871 the constitution for the German Empire (Deutsches Reich) came into force.

 

Like all other legislative initiatives within the North German Confederation, the Copyright Act also originated with Prussia, by far the largest and most powerful state within the Confederation. The copyright legislation was part of a range of statutes directed at fostering the economy by allowing free trade within the member states.

 

4. An overview of the provisions
The Copyright Act is divided into five chapters with sixty-two sections. Chapter I comprises more than half of the entire text and deals solely with literary works. The protection focuses on mechanical reproduction (§ 1), is extended to collected editions (§ 2), and declared to be transferable and inheritable (§ 3). Reprints of excerpts are included in § 4; lectures are covered by § 5, which confirms their author's exclusive publication right and that the owners of transcript copies of these have no copyright to them; the author's exclusive right to translations of his work is specified in § 6. Exemptions similar to modern ‘fair use' provisions are listed in § 7, but without any invocation of public interest to justify these. Copyright terms of in general 30 years p.m.a. (post mortem autoris) are prescribed in §§ 8-17; the procedures for enforcement are established in §§ 18-38; and registration formalities (obligatory for obtaining full protection for translations and anonymous works) are outlined in §§ 39-42.

 

Categories other than literary works are included in the subsequent brief chapters. Chapter II, which is concerned with "geographical, topographical, scientific, architectural, technical and similar illustrations", is largely based on the equivalent article § 18 of the Prussian Copyright Act of 1837, but now the source and the author must be declared for illustrations used in other works. Another ‘fair use' exemption in § 43 allows unlicensed reprints of pictures within works, in which the text constitutes "the main part" of the content and "the illustrations are just there to help elucidate etc. the text". The provisions on musical compositions in Chapter III are also based on the Prussian Copyright Act of 1837. The strict protection of melodies, however, was adopted from the Saxon mandate of 1831.[3]

 

Chapter IV includes provisions on performing rights. § 32 of the Prussian Copyright Act of 1837 had limited exclusive rights of performance to such works which had not yet appeared in print. In the 1870 Act this restriction was retained for "pure" musical compositions, but dropped in the case of dramatic and dramatico-musical works. The exemption for purely musical works was not overruled before the Copyright Act of 1901, following a major campaign by the composers that also led to the establishment of the first copyright collecting society for music performance rights within the German Empire: the Society for Musical Performance Rights (Anstalt für musikalische Aufführungsrechte), founded in 1903.[4] (In Austria a similar Society of Authors, Composers, and Music Publishers (AKM) had been set up a few years earlier, in 1897).[5]

 

The general provisions in Chapter V do ban the issuing of new printing privileges as such, but they still recognise the validity of those already granted. Article 61 concedes full protection to foreign publishers with a branch or trading office inside the territory of the North German Confederation, whereas § 62 limits to some extent the protection given to works published within the former German Confederation but outside the boundaries of the North German Confederation and later German Empire.

 

The Copyright Act of 1870 was confined to literary, musical and dramatic works and printed pictures. It was complemented by the Copyright Acts of 1876 regarding visual arts, photography, and designs, and stayed in force until these were replaced by the Copyright Acts of 1901 - for literary, musical and dramatic works - and of 1907, regarding visual arts and photography. Although the provisions on unjust enrichment and the limitation of actions were not incorporated into these Copyright Acts of 1901 and 1907, they did form part of the German Civil Code (BGB) which became effective on 1 January 1900.[6]

 

5. The 1870 Act in historical perspective
The Copyright Act of 1870 was the first to establish a unified copyright legislation within the German Empire, and thus within most of the states that had formed part of the German Confederation since 1815, with the exception of Austria. However, from the perspective of twentieth-century German copyright legislation the focus on exploitation rights and the very weak moral rights provisions of the 1870 Act testify to a certain "disequilibrium", as Elmar Wadle has put it.[7] The reason for this imbalance lies in the legislators' adherence to the traditional concept of "reprinting".

 

Unlike modern German copyright, which is based on the concept of an author's right that encompasses both exploitation rights and moral rights, the 1870 provisions were all related to the physical act of copying. At the heart of the statute is not a positive right vested in the author - even though the term "author's rights" is certainly part of the title - but, rather, the concept of "reprinting" as a contravention. In accordance with the general ban on "reprinting" (§ 4), all the author's rights (e.g. as specified in §§ 5-6) are defined with reference to the concept of "reprinting": "The following are also considered to be cases of reprinting..." (§ 4). Likewise, the ‘fair use' provisions in § 7 are regarded as exemptions to the general ban on reprinting: "The following are not to be treated as instances of reprinting..." (§ 7).[8]

 

While modern author's rights systems concentrate on the protection of "the rights of the authors in their literary and artistic works" (Berne Convention, Art. 1), or, even more personalistically, on the protection of the "author" (§ 1 German Copyright Act of 1901), the 1870 Act maintained the traditional Prussian focus on the "right to copy" and the action of "reprinting", which was either permitted or not. This whole approach was adopted from the Prussian Copyright Act of 1837, that had already served as the model for two proposed drafts of a law protecting author's rights that was to cover the whole territory of Germany: the Börsenverein's draft of 1857, which had been prepared by the Prussian lawyers Ludwig Eduard Heydemann (1805-1874), Franz Hinschius (1810-1877) and Ludwig Peter Moritz von Roenne (1805-1891) on behalf of the German Publishers' and Booksellers' Association (Börsenverein),[9] and the Frankfurt draft of 1864, which was the result of discussions by experts sent as envoys of the member states of the German Confederation to the Federal Assembly in Frankfurt.[10] Moreover, a modern concept of author's rights would probably have encountered resistance in the Reichstag (the parliament of the North German Confederation and subsequently of the German Empire). At least one MP raised concerns about the concept of "intellectual property", arguing that the statute being discussed was purely a prohibition based on utilitarian concerns.[11]

 

While derivative works like translations or musical arrangements are banned in view of their falling within the category of "reprints", the performance right provisions (§§. 50-56) do not refer to the concept of "reprinting" at all. The "right to publicly perform a dramatic, musical, or dramatico-musical work" (§. 50) is the only right conceived of independently from the "right to copy".

 

6. Requirements for amendments set by Supreme Court (Reichsgericht) decisions, and the Berne Convention
The Copyright Act of 1870 was not replaced until 1901, which means that it was in force for three decades of the publishing and printing boom in Imperial Germany - a flourishing that can readily be appreciated from the increase in the number of published titles: from 10,669 in 1871 to 16,305 in 1885, and to 24,792 in 1900; the proliferation of medium- and large-scale printing offices: from 1,461 in 1875 to 4,609 in 1907; and from the way that the number of people employed within the printing industry rose from 46,204 in 1875 to 134,208 in 1907. Likewise, the music industry was also going through an upswing after the C. F. Peters music publishing house started producing high-quality accessible editions of Beethoven and other classical composers from 1867 onwards (the famous ‘Edition Peters'). The number of titles of sheet music, including music theory, rose from 5,016 in 1871 to 6,336 in 1885, and to 12,272 in 1900.[12]

 

The many and diverse forms of derivative works which resulted from this boom in the German publishing industry, as well as the Berne Convention and, most importantly, a number of judicial findings by the Supreme Court of Justice in Leipzig (Reichsgericht), led to the 1870 Act being seen increasingly as incomplete and outdated.[13]

 

Under the Berne Convention of 1886 exclusive author's rights to translations had to be granted without any formalities. The German Empire as a signatory state of the Berne Convention was required, if not to amend its provisions on translations for German citizens, then at least to do so for nationals of the other signatory countries.

 

The restriction based on the concept of "reprinting" was upheld until the German Copyright Act of 1901 fully adopted the modern binary notions of "author" and "work". Meanwhile, however, important steps in this direction were taken by the jurisdiction of the Supreme Court, which in four decisions clearly acknowledged rights to derivative works that had not been covered for under the 1870 Act. In the so-called ‘Geier-Wally case', the then highly popular novel Die Geier-Wally, published in 1875 by Wilhelmine von Hillern (1836-1916), had been adapted for the theatre and about 300 manuscript copies of this stage version circulated to theatre-houses around Germany. In 1882, the court of the first instance had ruled that no ‘reprinting' offence had been committed as such, since the adaptation for the stage was a product of the defendant's independent authorship. The penal senate of the Reichsgericht agreed to the extent that dramatising was in principle allowed under the terms of the Copyright Act of 1870. But it was further argued that a reprint could nevertheless have taken place, even if the dramatisation was regarded as a work in its own right. To count as reprinting, the mere fact of mechanical copying was sufficient, and that was the case here, since many passages of the novel had been adopted in identical form in the stage version. In summing up the decision it was stated that:

"Nowhere does the Law of 11 June 1870 set up as a general principle that a verbatim reproduction (or one that must be treated as verbatim to all extents and purposes) of a literary work does not count as reprinting if the work in which this reproduction occurs can be regarded as an independent work."[14]

Under the 1870 Act the only derivative works that were fully protected as such were translations. The original author had a small-scale exclusive right to license translations, but once he had acquired a license, the translator had a full copyright against any reprinting of his translation. This was not the case for other derivative works, e.g. musical arrangements or compilations. The provision for translations was an exemption within the framework of the 1870 Act. After the Supreme Court's decision in the ‘Geier-Wally case', however, all derivative works could theoretically qualify as protectable subject matter. What, on the one hand, appears as a benefit for writers and artists engaged in producing derivative works, was, on the other hand, the dismissal of the old "reprinting" principle, and thus opened the door to a set of exclusive rights of the original author to any derivative uses of his work which was in principle unlimited.

 

In three decisions on mechanical music instruments, referred to by the trademarks of the music boxes as the "Herophon"-, the "Ariston"- and the "Clariophon"-decisions, the statutory concept of "reprinting" was further extended. In the "Herophon" case, the court of the first instance, following an expert opinion submitted by the Copyright Experts' Association, had described the exchangeable, perforated cardboard disc used in that music box as a "reprint" on the grounds that a trained musician would easily be able to transpose the music ‘recorded' in the perforations back into standard music-sheet notes that could be played on a piano. The Supreme Court in 1888 also concluded that the cardboard disc qualified as a "reprint", but, referring directly to §. 4, par. 1 ("Any mechanical reproduction of a literary work which is carried out without the permission of the right-holder counts as reprinting and is forbidden"), that

"It is just that, as §4, par. 1 explicitly says, every instance of mechanical reproduction counts as a reprint. The latter is merely the definition of the legal/technical term, rather than a description of the way in which the copy is made."[15]

The Supreme Court was the highest authority in this specific case, but since German courts are not that strictly bound by precedents, the court of first instance in the similar ‘Clariophon case' took once again a narrower approach to the statutory concept of "reprinting" and expressed the opinion that the arguments of the Supreme Court were more of

"an elaboration of author's rights on a theoretical basis than an actual interpretation of the right created by the law."[16]

In its revision in 1891 the Supreme Court retorted to the court of first instance that:

"Scholarship, including that of jurisprudence, does not concern itself with externals and mere formalities. Rather, it seeks to explore the essential nature of things."[17]

It argued further that the statutory ban of mechanical reproduction also covered cases in which a product was communicated by non-visual media. To the defendants' argument that music boxes with exchangeable discs had been known at the time when the Berne Convention was agreed on, the Supreme Court replied that the Convention had envisaged only music boxes without exchangeable discs.

 

A further step away from the strict concept of reprinting towards modern notions of an author's work was taken in the ‘Ariston decision' of 1895. The lower courts had indeed qualified the music box discs as "reprints" but rejected any compensation claims, since the plaintiff, not having himself used his composition for a music box, had consequentially not suffered any damage. The Supreme Court, however, ruled in 1895 that anyone who made unauthorised use of, and profited from, others' intellectual property had to surrender his profits. By asserting that "the author has the exclusive right to mechanically copy his intellectual product",[18] the Supreme Court expressed the new concept of author's rights, which was to be fully enshrined within the German Copyright Act of 1901.

 

7. References

Books and articles [in alphabetical order]

 

Bandilla. Kai. Urheberrecht im Kaiserreich (Frankfurt: Peter Lang, 2005)

Entscheidungen des Reichsgerichts in Zivilsachen, vol. 27

Entscheidungen des Reichsgerichts in Strafsachen, vol. 8

Entwurf eines Gesetzes für Deutschland zum Schutze des Eigenthums an Werken der Wissenschaft und Kunst gegen Nachdruck und Nachbildung (Berlin: Sittenfeld, 1857). The "Börsenverein's draft"

Gamm, Otto-Friedrich Frhr. v. Urheberrechtsgesetz (Munich: Beck, 1968)

Mandry, Gustav. "Der Entwurf eines gemeinsamen deutschen Nachdrucksgesetzes", Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 7 (1865): 1-55. Available online at:

<http://dlib-zs.mpier.mpg.de/mj/kleioc/0010/exec/bigpage/"2085047%5f07%2b1865%5f0007">

Protokolle der von der hohen deutschen Bundesversammlung durch Beschluß vom 16 Juli 1863 einberufenen Kommission zur Ausarbeitung des Entwurfs eines für sämtliche deutschen Bundesstaaten gemeinsamen Gesetzes zum Schutze des Urheberrechts an Werken der Literatur und Kunst gegen Nachdruck sowie gegen unbefugte Nachbildung und Aufführung (Frankfurt, 1863/64). Reprint in UFITA (Archiv für Urheber- und Medienrecht) 120 (1992): 177-299 and 121 (1993): 71-291. The "Frankfurt draft"

Schmidt, Manuela Maria. Die Anfänge der musikalischen Tantiemenbewegung in Deutschland (Berlin: Duncker & Humblot, 2005)

Verfassung des Norddeutschen Bundes ("Constitution of the North German Confederation"). Available online at:

<http://www.verfassungen.de/de/de67-18/verfassung67-i.htm>

Verfassung des Deutschen Bundes. ("Preliminary Constitution of the German Empire"). Available online at:

<http://www.verfassungen.de/de/de67-18/verfassung70-i.htm>

Vogel, Martin. "Die Geschichte des Urheberrechts im Kaiserreich", Gewerblicher Rechtsschutz und Urheberrecht (GRUR) 1987: 873-83; also in Archiv für Geschichte des Buchwesens, no. 31(1988): 203-19

Wadle, Elmar Geistiges Eigentum I (Weinheim: VCH, 1996)

Wadle, Elmar Geistiges Eigentum II (Munich: C.H.Beck, 2003)



[1] Constitution of the North German Confederation. ("Verfassung des Norddeutschen Bundes"). Available online at:

<http://www.documentarchiv.de/nzjh/ndbd/verfndbd.html>.

[2] Constitution of the German Empire. ("Verfassung des Deutschen Reichs"). Available online at:

<http://www.documentarchiv.de/ksr/verfksr.html>.

[3] See a discussion of this in the commentary to d_1829.

[4] See the detailed study by Manuela Maria Schmidt: Die Anfänge der musikalischen Tantiemenbewegung in Deutschland (Berlin: Duncker & Humblot, 2005).

[5] The "Gesellschaft der Autoren, Componisten und Musikverleger" (AKM) was founded on 5 November 1897 on the initiative of the publisher Josef Weinberger. Schmidt (2005), 86.

[6] See Otto-Friedrich Frhr. v. Gamm, Urheberrechtsgesetz (Munich, Beck, 1968), 42.

[7] Elmar Wadle, Geistiges Eigentum I (Weinheim: VCH, 1996), 333.

[8] Elmar Wadle, Geistiges Eigentum II (Munich, C.H.Beck, 2003), 55, with reference to Martin Vogel, "Die Geschichte des Urheberrechts im Kaiserreich", in Gewerblicher Rechtsschutz und Urheberrecht (GRUR) 1987: 873-883; also in Archiv für Geschichte des Buchwesens 31 (1988): 203-219.

[9] Entwurf eines Gesetzes für Deutschland zum Schutze des Eigenthums an Werken der Wissenschaft und Kunst gegen Nachdruck und Nachbildung (Berlin: Sittenfeld, 1857).

[10] The Frankfurt draft and the protocols of the commission were published as Protokolle der von der hohen deutschen Bundesversammlung durch Beschluß vom 16 Juli 1863 einberufenen Kommission zur Ausarbeitung des Entwurfs eines für sämtliche deutschen Bundesstaaten gemeinsamen Gesetzes zum Schutze des Urheberrechts an Werken der Literatur und Kunst gegen Nachdruck sowie gegen unbefugte Nachbildung und Aufführung (Frankfurt, 1863/64). Reprint in UFITA (Archiv für Urheber- und Medienrecht) 120 (1992): 177-299 and 121 (1993): 71-291. For details of the Frankfurt draft see Wadle (1996), 309 ff. An early comment on the Frankfurt draft was published by Gustav Mandry, "Der Entwurf eines gemeinsamen deutschen Nachdrucksgesetzes", Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 7 (1865): 1-55. Available online at:

<http://dlib-zs.mpier.mpg.de/mj/kleioc/0010/exec/bigpage/"2085047%5f07%2b1865%5f0007">

[11] Kai Bandilla, Urheberrecht im Kaiserreich (Frankfurt: Lang, 2005), 25, with reference to "Stenographische Berichte der Verhandlungen des Reichstages des Norddeutschen Bundes" (Berlin 1867-1900) (no. 21 [February 1870]).

[12] Bandilla (2005), 31.

[13] The following cases are cited from Bandilla (2005), 31ff.

[14] "das Gesetz vom 11. Juni 1870 nirgends den allgemeinen Grundsatz auf[stellt], daß eine wörtliche oder der wörtlichen gleichzuachtende Reproduktion eines Schriftwerkes kein Nachdruck sei, wenn das Werk, in welchem die Reproduktion erfolge, als selbständiges Werk in Betracht komme." - Entscheidungen des Reichsgerichts in Strafsachen (RGSt), vol. 8, 428, 431. Quoted in Bandilla (2005), 40.

[15] "Jede mechanische Vervielfältigung heißt nur , wie die § 4 Abs. 1 ausdrücklich sagt ...Nachdruck. Letzteres ist lediglich die Bezeichnung des juristisch-technischen Begriffs, und nicht die Kennzeichnung der Art der Wiedergabe." - Entscheidungen des Reichsgerichts in Zivilsachen (RGZ), vol. 22, 176. Quoted in Bandilla (2005), 41.

[16] "[eher] eine Fortbildung des Urheberrechts auf theoretischer Grundlage als eine Auslegung des durch das Gesetz geschaffenen Rechts". - Entscheidungen des Reichsgerichts in Zivilsachen, vol. 27, 64. Quoted in Bandilla (2005), 42.

[17] "Die Wissenschaft, auch die wisenschaftliche Jurisprudenz, hält sich nicht an Äußerlichkeiten. Sondern sie sucht das Wesen der Dinge zu erkunden". - Entscheidungen des Reichsgerichts in Zivilsachen, vol. 27, 64. Quoted in Bandilla (2005), 42.

[18] "Der Urheber hat das ausschließliche Recht, sein Geistesproduct auf mechanischem Wege zu vervielfältigen". - Entscheidungen des Reichsgerichts in Zivilsachen, vol. 27, 64. Quoted in Bandilla (2005), 42.


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