Commons talk:Copyright rules by territory/Germany

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Copyright of photographs

My reading of the Wikimedia Commons page relating to the law of copyright in Germany provides virtually no guidance about the copyright of photographs which is a pity as this is the most important part of copyright law from the point of view of contributors to Wikimedia Commons and the German law on copyright regards photographs as a “special case”. I therefore propose the following amendments to the Commons page:

Section: Standard term for works

Proposal: Replace the existing text, (retaining the citation) with:

As of 2021, the standard copyright term for most works is life + 70 years but the term for photographs is 50 years from the date of [legal] publication, or if not [legally] published, 50 years from the date of production.

Proposal: Add the following text to the end of the line.

Under German Law, copyright can only be held by a natural person, not by a corporation or other legal entity.

===Section: Unauthorised publication of works=== Proposal: This is a new section which should come before the section on Anonymous works. The proposed text is:

Under German law, publication by a third party of a work which is under copyright protection for which the author has not given consent is regarded as theft of copyright for which the publisher can be prosecuted. However if 30 years elapse between the unlawful publication and the owner of the copyright is unaware of the publication, then the owner loses their rights in respect of copyright. Furthermore, if the author becomes aware of the publication before the end of the 30-year time limit but does nothing about it for 10 years again the owner will lose their rights to the publication. In both instances the copyright to the work will enter the public domain. (Reference: Schlun & Elseven)

Section: Anonymous and pseudonymous works

Proposal: The following sentence should be added at the start of the section:

Under German law, publication by a third party of a work which is under copyright protection for which the author has not given consent is regarded as theft of copyright for which the copyright holder can request prosecution of the publisher. In order to avoid prosecution for theft of copyright, a system exists in Germany whereby the publication by a third party of an anonymous work that is still potentially under copyright protection can be registered. Since Wikimedia Commons does not accept such a work, details of this registration are beyond the scope of this guide.

New templates

I propose that the following new templates be created:

• Template:PD-Germany- §72 which will cover photographs over 50 years old that have entered the public domain die to never been published
• Template:PD-Germany- §72-plus which will cover photographs that have entered the public domain due to 50 years having elapsed since their publication.
• Template:PD-Germany-photo-30 which will cover photographs that have entered the public domain due to having been published by an unauthorised party 30 years previously and not having been challenged by the rights-holder.

References:

• German Law: ’’Gesetz über Urheberrecht und verwandte Schutzrechte (UrhG)’’ – here, English text, especially §72)
• Schlun & Elseven (a German law firm): Copyright Infringement Claims, Remedies, and Defences in Germany

Martinvl (talk) 16:09, 23 September 2024 (UTC)

Discussion

@Martinvl: Slight nitpick, but the template should specify the copyright expires after the photo is released not published for PD-Germany-§72-plus. See the official definition for more information. —Matrix(!) {user - talk? - _uselesscontributions} 17:10, 23 September 2024 (UTC)

 Oppose Germany used to have different copyright term durations for photographs but that changed in 1985 and 1995. There are nominally two categories of photographs, one called Lichtbilder ("simple" photographs) and another one called "Lichtbildwerke" (photographic works). Photographic works were given 70 years pma in 1985, and all simple photographs were given 50 years from publication/creation in 1995 (before, some had had 25 years). The courts then went to work and restricted the "Lichtbild" ("simple" photograph) category to photographs from automated photo booths, X-ray images, photos from surveillance cameras, satellite imagery and so on. Basically every photograph taken by a human is considered to be a photographic work with 70 years pma in Germany these days. And a well-known court case (the U-Boot-Foto case) made clear that this also applied to old photographs as long as they had still been protected anywhere in the EU in 1995. And that court case then pointed out that Spain had had 80 years pma for photographs since the 19th century, thus reviving the copyright of the 1941 German photograph which was at the center of the case. --Rosenzweig τ 17:16, 23 September 2024 (UTC)

The 30 year term this law firm writes about is a Verjährungsfrist, the term after which a statute of limitations (I think that's the term in English) applies. So any violations of copyrights will not be punished anymore after 30 years. That does not make it in any way legal to violate the copyright, and it certainly does not mean that any work enters the public domain because someone violated its copyright 30 years ago. --Rosenzweig τ 17:24, 23 September 2024 (UTC)

Hello @Martinvl, happy to help you with this (I am a German media and IT lawyer with a PhD in German and European copyright law, see my professional website here.)
As a first step, we should remove the part of your proposal talking about a 30-year period, as this is simply the term for the statute of limitations for copyright violations, as @Rosenzweig has already rightly pointed out. Could you do that, please? Otherwise I am fearing that the discussion will continue to circle back on this point.
That said, you are probably right that this page should be improved, so let's work on that together. Ideally, we should reduce the amount of Germany-specific statements as much as possible in favour of only explaining where Germany deviates from the general rules under EU copyright law. Gnom (talk) 20:08, 23 September 2024 (UTC)

• Hi @Gnom: Thank you for your input. I have struck out the sections that you suggested. My reason for coming here is that I got involved in the copyright status of images in Category:Auschwitz_Album and I am marginally involved in copyright issues in respect of an archive that a small group in my home town is building (nothing ot do with Wikimedia).
• Hi @Rosenzweig: Thank you for your input. The case that you mentioned puzzles me. Under German law, copyright is always invested in a human being, never in a corporation of other legal personna. If the only photographs that are covered by §72 are machine-produced photos, who owns the copyright of those photos? If nobody, then why is that clause there? Martinvl (talk) 20:32, 23 September 2024 (UTC)

As far as I know usually someone who operates the machine. Like if you're taking your own photo in an automated photo booth, you. How that someone would be defined in the case of satellite imagery or surveillance footage I'm not quite sure though. The clause as such is the original (probably somewhat modified) clause that protected photographs before photographic works were first introduced (in 1965), and its scope has been reduced over time. Maybe Gnom can explain this better. --Rosenzweig τ 20:42, 23 September 2024 (UTC)

Here is my attempt: Under German law,

• photos with "artistic merit" (Lichtbildwerk) are protected under sec. 2 UrhG, with a term of protection of 70 years pma, while
• photos without "artistic merit" (Lichtbild, you could also call them "snapshots") are protected under sec. 72 UrhG, with a term of protection of 50 years after publication.

As a rule of thumb, however, almost all (!) photos that we are encountering here on Commons qualify as Lichtbildwerk under art. 2 UrhG. This means that the Lichtbild protection of sec. 72 UrhG is only rarely relevant for us at all (@Rosenzweig listed a few categories above, such as self-portraits in photo booths etc.).

Things then get more complicated with the fact that the terms indicated above have been changed in the past, but it is probably best to understand this distinction first. Gnom (talk) 20:57, 23 September 2024 (UTC)

@Rosenzweig by the definition of "surveillance cameras", is that essentially the CCTV camera imageries? In the U.S., most imagery is considered in public domain, but would this means such imagery is copyrightable in Germany? There are several DR cases concerning surveillance camera imageries, some categorized under the subcats of Category:Security camera-related deletion requests. JWilz12345 (Talk|Contrib's.) 22:38, 23 September 2024 (UTC)

Careful with the U.S. part of that -- not sure there has been any court case on that, and at least some CCTV stuff has been given a copyright registration. CCTV itself is not a distinction -- the U.S. uses a criteria that if there is human authorship with at least a "minimal degree of creativity". There are probably some CCTV situations which qualify and some that do not.

I will leave it to German commenters who know far more than me about their law, but just mention that the EU states that a work must be the "author's own intellectual creation" to have a copyright. Despite general copyright harmonization, it's possible for that phrase to be interpreted differently in each country, and Germany currently has a pretty low threshold as its interpretation, it would seem from comments made here and in older discussions -- I think rulings after the EU directives were implemented pretty much said that virtually all photographs were now "works", and not the simple photos with a lower term. I'm guessing it would be things more like medical scans (which are not copyrightable in the US), and maybe CCTV cameras, which would now be "simple photos", with almost anything taken by a person using a camera being a "work". Before the EU directives, yes, snapshot-type photos were considered "simple", with newspaper-type photos being the ones protected for 50 years from publication (or creation if not published). But the EU directives pretty much retroactively overrode that, at least if that new lower threshold applies. Virtually all should be 70 years from publication if anonymous, or 70pma if not. A corporation may own the economic right, but the term would be based on the human author. Carl Lindberg (talk) 04:29, 24 September 2024 (UTC)

@JWilz12345: Yes, essentially CCTV. --Rosenzweig τ 09:01, 24 September 2024 (UTC)

I wrote the majority of the two sections in question. (1) As for the anonymous works section, I have some difficulty trying to understand the proposed amendment. For one, I don't quite understand what you mean by 'system.' The register of anonymous and pseudonymous works (de:Register anonymer und pseudonymer Werke)? The point of the register is to allow authors that have previously published material anonymously or pseudonymously to extend the protection to 70 years pma. Say you published cartoons in a newspaper in 1955 without attribution and there are currently no means for the public to learn about your identity. Now you want to exploit these cartoons commercially (assuming you have retained the rights to do so). You may legitimately fear that your copyright in the cartoons is about to expire. To address this, you can 'de-anonymize' the works, thus reclaiming a pma copyright term. The register serves as a formal mechanism for doing just that, without requiring you to go through the lengths of, say, writing postcards to German publishers. In practical terms, the register is increasingly irrelevant (last year, not a single work was registered). In light of this, I just don't understand the suggested addition, which doesn't seem to accurately reflect the register's role. Maybe you are talking about something else. (2) I'm sceptical that a dedicated s 72 template is needed. As Rosenzweig, Gnom, and Carl Lindberg have pointed out, in Germany photographs are very likely to meet the standard for photographic works, so this template would seem bound to misuse. On this project, the most important area where photographs typically only qualify as simple photographs is pictures of 'flat' pieces of art. However, if the artwork is already in the public domain, then Template:PD-Art can typically be applied (as the photograph is not protected, see Commons:Reuse of PD-Art photographs#Germany); and if the artwork is not in the public domain, then usually the photograph was created more recently and we need the photographer to grant a free license anyway. (3) I'm sure that some helpful additions could be made regarding the protection of old photographs specifically, although I have a slight concern (see above) about giving the impression that engaging in this photographic work vs simple photograph distinction is a fruitful activity in most cases, when it really isn't. Again, we are essentially talking about a very small class of files depicting 50+ year old X-rays, security camera footage and photographs of 'flat' objects (except photographs of works of visual art that are now in the public domain). When properly analysed, I think for purposes of this project it is very much a fringe issue. The situation would only change if one were to advance a view that, say, a run-of-the-mill shot with an instant camera would fail the originality test. But that would put us on very shaky legal ground. Best, — Pajz (talk) 11:37, 24 September 2024 (UTC)

@Pajz: said that we are talking about a very small class of photographs. This discussion was sparked off by a question regarding the Auschwitz Album, a historically important collection of photographs held by the Holocaust Remembrance Centre (Yad Vashem) in Israel. Copies of the images are available from both the Yad Vashem website and the United States Holocaust Memorial Museum website free of charge and both sites assert that they are in the public domain. While they might well be in the public domain in the US and in Israel, a question has been raised as to whether or not they are in the public domain in Germany. The relevant facts are:

• The photographs were taken in 1944 by one of the official camp photographers - Bernhard Walter or Ernst Hoffmann (not to be confused with Heinrich Hofmann)
• The SS attempted to destroy all traces of the photograph in 1945, but one photo album containing the photographs was missed.
• This album was presented as evidence at the Frankfurt Auschwitz trials (1963-5). Walter was called as a witness and attempted to deny having taken the photos, but eventually conceded that he might have taken some of them, but did not identify which one he had taken. There has been no trace of Hoffmann since he was released from a French prison in 1948.
• Walter died in 1979 while Hoffmann (born 1901) is assumed to have died.
• As far as is known, neither Walter, his heirs, Hoffmann or his heirs has claimed intellectual rights in respect of any individual photo, let alone given consent ot their publication.
• In recent years an academic, using forensic techniques, has assigned some of the photos to one or other photographers.

The big question is whether or not the photos should be in Wikimedia Commons. The original uploader asserted that they were annonymous.

Martinvl (talk) 15:23, 24 September 2024 (UTC)

@Martinvl, I would not consider photographs like the ones from the 'Auschwitz Album' simple photographs. I'm not saying they definitely aren't simple photographs. I'm just saying that under Commons:Project scope/Precautionary principle, I don't think we should conclude that they are simple photographs. For perspective, here is a list of features that have historically been invoked by German courts to justify why a photograph qualified for protection as a work (as assembled by IJ Schiessel, Reichweite und Rechtfertigung des einfachen Lichtbildschutzes gem. § 72 UrhG (Nomos 2020) (CC BY 4.0), 49ff (citations omitted); translation: DeepL.com):

individual approach or artistic statement by the photographer as opposed to a merely pleasing or purely technical depiction; presence of a statement based on design; unusual choice of subject and individual framing; careful selection of subjects with a particular aim in mind; choice of an unusual perspective; special effect of the persons and/or objects depicted through the choice of perspective; special distribution of light and shadow; special contrast and sharpness; choice of the right moment in motion, portraits or the like; selection of certain photographic materials that characterise the image impression, influence or shape the image result in a certain way; particularly good capture of the mood or creation of a special atmosphere; creation of a certain atmosphere; depiction of a problem in a vividly expressive way; depiction that makes the viewer think; detailed arrangement and conception, conscious design of the image structure; selection of the development technique for producing the print or use of image processing software; selection of technical framework conditions such as selection of a camera type and fine adjustments (aperture, time); lending a personal touch by selecting the development technique used to produce the print or use of software

With that in mind, when it comes to photographs taken by someone holding a camera in their hands that do more than just accurately reproduce a 'flat object,' unless the photographer specifically tells you 'I made this picture while sitting drunk on my balcony, randomly pressing the shutter button,' there will, I would submit, always be a case that it could be photographic works, particularly as some of the criteria hinge on external features that can hardly be inferred from just looking at the resulting photograph. Moreover, many of these crtieria, while still invoked today, were originally developed by the courts pre-1995. Since the transposition of the Term Directive, German courts determine the question of protection as a photographic work with deference to art 6 of the Term Directive (BGH GRUR 2000, 318 – Werbefotos). (At least) since then, it is widely understood that 'average or below-average photographic depictions enjoy protection as photographic works' as well, 'provided that a distinguishable design exists and another photographer might have designed the photo differently' (A. Nordemann in Fromm/Nordemann: Urheberrecht (12th edn, Kohlhammer 2018), § 2 para 198; translated). This is a fairly low bar. You can see similar developments post-Term Directive in other jurisdictions that traditionally distinguish between photographic works and simple photographs (eg in Austria, where the Supreme Court has expounded on this in more detail than its German counterpart has done so far; see OGH MR 2001, 389 – Eurobike [discussing the 'reduced originality concept' in the Term Directive (reduzierter Originalitätsbegriff) and finding that 'ordinary photographs' of cyclists are also protected as works because all it takes is that 'an individual assignment between the photograph and the photographer is possible insofar as the photographer's personality is expressed by the means of composition chosen by him (motif, angle of view, lighting, etc.). In any case, such creative freedom exists not only for professional photographers with work that claims to be of a high artistic standard, but also for the majority of amateur photographers who capture everyday scenes in the form of landscape, people or holiday photos; such photographs are also ... to be classified as photographic works, provided that the means used to create them are distinctive.'] and OGH MR 2008, 345 – Natascha K. [holding that 'even everyday portrait photos are photographic works if they have a visual design by the photographer. The criterion of distinctiveness is always fulfilled if it can be said that another photographer might have designed the photograph differently']; translations: DeepL.com). I don't think you can look at the 'Auschwitz Album' photographs and, whilst obeying Wikimedia Commons' precautionary principle, affirmatively conclude that these photographs are not photographic works. Maybe you could even convince a court that they aren't. But I strongly believe that there is at least 'significant doubt' (Commons:Project scope/Precautionary principle) about their (mere) protection under a related right.

This illustrates why I think that the German-language Wikipedia and this project (so far) got it right to refrain from allowing a PD-50 option for—supposedly—'simple photographs.' And that is why I said that the scope of any such template would have to be very limited (specifically, limited to things like 50+ year old X-ray images), to an extent that makes me wonder if it is worth the trouble. As for the other specific legal issues posed by the 'Auschwitz Album' photographs, I am somewhat hesitant to discuss them here as this is a discussion about a proposed policy change (of sorts), so I feel this may lead a bit astray here. Best, — Pajz (talk) 10:33, 25 September 2024 (UTC)

Extended discussion of the Auschwitz album photos

@Pajz: I have done a little more research on the photos of the Auschwitz Album. The photos in Wikimedia Commons come from one of two sources - The United States Holocaust Museum or Yad Vashem in Israel. In both cases, the originating museum states that the photos are in the public domain, but do not qualify their statement. What licencing statements should be given to satisfy the Wikimedia Commons requirements as removing the images from Commons on account of some minor technicality when applying Commons:Project scope/Precautionary principle too rigidly whould tarnish Wikimedia's credibility and along with it, that of Wikipedia as well? Martinvl (talk) 15:44, 25 September 2024 (UTC) I think under old German law, they were "simple photographs". At the time, a maximum of 25 years from publication, or creation if not published. That was later extended to 50, but it would take some rather fortuitous publication timing for these to have been protected by that 50. When the EU directives happened, these are no longer simple photographs, but "works". The retroactive terms of 70 years for anonymous works, or 70pma if not anonymous, should now apply (unless somehow that 50 year term was longer, which would require even more fortuitous timing of publication). The copyright owner would seem to be the German government. They would need to be anonymous or not based on the post-directive rules on what "anonymous" means, I think. Those, I believe, include a requirement that the author themselves make the authorship public. It seems as though it is strongly suspected that the photographers were two people, and one of them said certain photos were not him, but I don't recall if they identified them as being by the other for sure. Even if they did, not sure it would change them to be 70pma by the current rules. And I don't think that author specifically identified the photos he did take, so not sure that even his could be considered to have a 70pma term. The determination of when they were "published" may also be quite difficult, and that matters for the old term and the current anonymous term. To me, most likely they have the anonymous 70 year term, as never having the human author identifying themselves. Publication is harder, as they were used in the 1960s in a trial, but they were known about well before that. They seem to have been some sort of officially sanctioned work, so they could well be consdiered published at the time. Or even never legally published. If either at the time or never, they are PD today. Any claim of current-day copyright would have to be based on particularly unusual publication timing, or being 70pma and not knowing when the author died (and never being able to find out). And the country of origin could depend on where that publication happened. As for tarnishing Commons' credibility, that more comes from situations where we claim PD, but another party claims otherwise, and are ruled correct. That then includes practical considerations -- and in this case would involve the German government trying to claim copyright over Nazi material in order to suppress it (take it off Commons or somewhere else). That is ... fantastically unlikely, which puts this discussion into highly theoretical areas because we almost certainly won't get a court case about it. It is PD in Israel, which only protected photos for 50 years from creation, and the US due to the Alien Property exception. Other countries could be a tortured case-by-case thing looking at their laws. I think it's entirely plausible to just put {{PD-anon-70}} and {{PD-US-alien property}} on it. These are about the last photos I would expect to be a practical problem to host. Carl Lindberg (talk) 23:57, 25 September 2024 (UTC) I am afraid but a photo such as File:Selection on the ramp at Auschwitz-Birkenau, 1944 (Auschwitz Album) 1b.jpg certainly qualifies as a Lichtbildwerk under German copyright law (sec. 2), and not as a mere Lichtbild (sec. 72). Gnom (talk) 08:23, 26 September 2024 (UTC) The authors of d:Q130299692 say that this photo was taken by de:Bernhard Walter (SS-Mitglied) (1911–1979). --Rosenzweig τ 11:14, 26 September 2024 (UTC) This is pure and wild assumption, nothing based on evidence. Sure, it was taken by an employee of the camp, but who? We don't know, and we will never know, as all witnesses died without giving any information. So the licenses mentioned by Carl above perfectly fits the case. And about "tarnishing the reputation of Commons" mentioned somewhere, deleting images of the Auschwitz Album under spurious reasons would certainly do that. Yann (talk) 13:25, 26 September 2024 (UTC) It is not a "wild assumption". They had access to archival records from the camp and were able to determine the dates the photos were taken, sometimes precisely, sometimes within a few days, and also who was active as a photographer. They are certain that the album photos are by either Walter or Hofmann, and made the determination which of the two took specific photos based on characteristics of the photos. Like Walter's penchant to take photos from slightly elevated positions and his use of photographic composition, while Hofmann did not care about those, but characteristically often took three photographs directly in a row, only slightly moving the camera to the right after each shot. For some photos, they are not sure which one of the two is the photographer. While all that is not proof, I would certainly call it evidence. --Rosenzweig τ 14:56, 26 September 2024 (UTC)

Just to clarify: This is not a deletion discussion, but instead a discussion to clarify the rules regarding the copyright laws of Germany, which has shifted towards a discussion about the legal qualification of certain photographs. So far, it appears that no consensus has been reached (yet) about any necessary changes to the rules page. Gnom (talk) 13:29, 26 September 2024 (UTC)

While it might not be a bad idea to mention the Lichtbilder (simple photographs), I am against a specific template for them. I agree with Pajz that any such template would be bound to be misused simply because people don't understand what a Lichtbild is and is not, while the cases where it actually could be properly used are rather rare. It would be better to use something like {{PD-because}} if we actually have such a case. --Rosenzweig τ 14:56, 26 September 2024 (UTC)

I suggest that we move the discussion about the specific Auschwitz album photographs back to COM:VPC (where it started) and restrict this discussion here to Martinvl's proposal. --Rosenzweig τ 15:03, 26 September 2024 (UTC)

Following on from the above discussions, I have amended my suggestion further. Briefly, I have expanded the introduction to the section on annonymous works and have removed suggstions for new templates. I have underlined the new text that I have proposed. Martinvl (talk) 20:55, 29 September 2024 (UTC)

Hi @Martinvl, thank you for this, but we might indeed want to make some clarifications to the page based on what you brought up.

Regarding the sentence "Under German Law, copyright can only be held by a natural person, not by a corporation or other legal entity.", however, please note that this statement probably holds true for all jurisdictions following the French legal tradition (i.e. 80 % of the world's countries!), while the opposite (corporations can hold (original) copyright) only applies to the UK and its former colonies (including the US). That said, Germany (and all other non-anglophone jurisdictions) allows authors to transfer nearly all of their rights to a corporation, making their legal position virtually identical to that of an original author. This means that for the purposes of Commons, we could as well ignore this distinction, I would say. Gnom (talk) 07:28, 30 September 2024 (UTC)

It may be helpful, still, to clarify, that the duration of the copyright term remains tied to the year of death of the natural person who is the creator of the work (70 years pma), even if they transferred the rights to a corporation? Gestumblindi (talk) 19:01, 30 September 2024 (UTC)

Just a small remark on terminology: "Theft of copyright" sounds somewhat strange to me. There is no such term as "Urheberrechtsdiebstahl" in German, but "Diebstahl geistigen Eigentums" exists, which would be rather "theft of intellectual property". For it is not the copyright itself that can be stolen, but the work (the intellectual property) if it is used/reproduced in violation of copyright. So rephrase to "violation of copyright" or "theft of intellectual property"? Gestumblindi (talk) 19:08, 30 September 2024 (UTC)