When is a work "not published" - "Motezuma" and copyright law

A work is published when a "sufficient number" of copies have been offered to the public or placed on the market.

The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law, among other things, has ruled on the conditions under which a work has not yet been "published" with the consequence that the publisher of the first edition is entitled to a right of exploitation under Section 71 UrhG.

In 2002, the composition of the composer Antonio Vivaldi, who died in 1741, for the opera "Motezuma" was discovered in the handwriting archive of the plaintiff, the Sing-Akademie zu Berlin. The opera had been premiered in 1733 under Vivaldi's direction at the Teatro S: Angelo in Venice. While the libretto of the opera remained known, the composition was long considered lost. The applicant published facsimile copies of the discovered manuscript. It is of the opinion that, as the publisher of the first edition of the work ("editio princeps"), it thereby acquired the exclusive right to exploit this composition pursuant to Section 71 UrhG. According to this provision, such a right, which is similar to copyright, is due to the person who "causes a hitherto unpublished work ... to appear for the first time". The plaintiff claims damages from the defendant, the organiser of the Düsseldorf cultural festival "Altstadtherbst", because the latter performed the opera in Düsseldorf in September 2005 without her consent.

The district court and the court of appeal dismissed the action.

The plaintiff's appeal was unsuccessful. The Federal Court of Justice ruled that the person who, as the publisher of the first edition, claims a corresponding right to exploit a work generally bears the burden of proof that this work "did not appear". Since it is usually difficult to prove the non-existence of a fact - especially the non-publication of a centuries-old work - the claimant can initially limit himself to the assertion that the work has not yet been published. It is then up to the opposing party to present the circumstances that speak for the fact that the work has already been published. The claimant satisfies his burden of presentation and proof if he refutes these circumstances. According to these principles, the Federal Court of Justice held that the plaintiff had not sufficiently demonstrated that Vivaldi's composition for the opera "Motezuma" had "not appeared". According to Section 6 (2) sentence 1 UrhG, a work has been published if copies have been offered to the public "in sufficient numbers" or have been put into circulation. This is the case if the number of copies is sufficient to enable the interested public to take note of the work.

According to the BGH, it must be assumed that the composition for the opera "Motezuma" "appeared" as early as 1733. The opinions of renowned musicologists submitted by the parties show that at that time, commissioned works for Venetian opera houses - and the opera "Motezuma" was one such work - were usually only performed for one season at the respective opera house; moreover, a copy of the score was regularly deposited at the opera house, from which - as was generally known - interested parties (such as foreign courts) could have copies made. Whether this was also the case with the opera "Motezuma" can no longer be determined today. However, since the plaintiff has not presented any evidence for a different procedure, it is highly probable that in this case, too, everything was done to give the Venetian opera audience and possible interested parties in copies of the score sufficient opportunity to become acquainted with the composition by handing it over to those involved in the premiere and depositing a copy of the score with the opera house.


Judgment BGH of 22 January 2009 - I ZR 19/07 - Motezuma


Previous instances: LG Düsseldorf - Judgment of 17 May 2006 - 12 O 538/05; OLG Düsseldorf - Judgment of 16 January 2007 - 20 U 112/06, ZUM 2007, 386


Source: Press release of the Federal Supreme Court (BGH) No. 18/2009 of 23 January 2009


Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M.(Information Law)

- Specialist lawyer for information technology law -

E-mail: m.ullrich@goldberg.de