A work is considered published when copies “in sufficient number” have been offered or put into circulation to the public.
The I. Civil Senate of the Federal Court of Justice (BGH), responsible inter alia for copyright law, has ruled on the conditions under which a work has hitherto “not been published,” with the consequence that the publisher of the first edition is entitled to an exploitation right under § 71 German Copyright Act (UrhG).
In 2002, the composition for the opera “Motezuma” by Antonio Vivaldi, who died in 1741, was discovered in the manuscript archive of the plaintiff, the Sing-Akademie zu Berlin. The opera had premiered in 1733 under Vivaldi’s direction at the Teatro S: Angelo in Venice. While the opera’s libretto remained known, the composition was long considered lost. The plaintiff published facsimile copies of the rediscovered manuscript. She is of the opinion that, as the publisher of the first edition of the work (“editio princeps”), she thereby acquired the exclusive right to exploit this composition under § 71 German Copyright Act (UrhG). According to this provision, a right similar to copyright is granted to anyone who “for the first time publishes a work hitherto not published.” The plaintiff demands damages from the defendant, the organizer of the Düsseldorf cultural festival “Altstadtherbst,” because the latter performed the opera in September 2005 in Düsseldorf without her consent.
The Regional Court and the Court of Appeal dismissed the action.
The plaintiff's appeal was unsuccessful. The Federal Court of Justice ruled that anyone claiming a corresponding exploitation right to a work as the publisher of its first edition generally bears the burden of proof and substantiation that this work has “not been published.” However, since it is generally difficult to substantiate and prove the non-existence of a fact – especially the non-publication of a centuries-old work – the claimant may initially limit themselves to asserting that the work has not yet been published. It is then up to the opposing party to present circumstances indicating that the work has indeed already been published. The claimant fulfills their burden of proof and substantiation if they refute these circumstances. According to these principles, the plaintiff – as stated by the Federal Court of Justice – did not sufficiently demonstrate that Vivaldi’s composition for the opera “Motezuma” had “not been published.” According to § 6 para. 2 sentence 1 German Copyright Act (UrhG), a work is considered published when copies “in sufficient number” have been offered or put into circulation to the public. This is the case when the number of copies is sufficient to enable the interested public to take notice of the work.
Accordingly – as stated by the BGH – it must be assumed that the composition for the opera “Motezuma” was already “published” in 1733. Statements submitted by the parties from renowned musicologists indicate that, at that time, commissioned works for Venetian opera houses – and the opera “Motezuma” was such a work – were usually performed only during one season at the respective opera house. Furthermore, a copy of the score was regularly deposited at the opera house, from which – as was generally known – interested parties (e.g., foreign princely courts) could have copies made. While it can no longer be definitively determined today whether this was also the case for the opera “Motezuma,” since the plaintiff has not presented any evidence of a different procedure, there is a high probability that, even in this case, everything necessary was done with the handover of the musical material to those involved in the premiere and the deposit of a copy of the score at the opera house, to provide the Venetian opera audience and potential interested parties in score copies sufficient opportunity to take notice of the composition.
BGH Judgment of January 22, 2009 – I ZR 19/07 – Motezuma
Lower Courts: Regional Court Düsseldorf – Judgment of May 17, 2006 – 12 O 538/05; Higher Regional Court Düsseldorf – Judgment of January 16, 2007 – 20 U 112/06, ZUM 2007, 386
Source: Press Release of the Federal Court of Justice (BGH) No. 18/2009 of January 23, 2009
Goldberg Rechtsanwälte
Attorney-at-Law Michael Ullrich, LL.M. (Information Law)
– Specialist Attorney for Information Technology Law –
E-mail: m.ullrich@goldberg.de
