Related Rights (Copyright)
1. Subject matter and purpose
Related rights (verwandte Schutzrechte/droits connexes), also known as neighbouring rights (Nachbarrechte/droits voisins), are a subgroup of intellectual property rights. They are ‘related’ to copyright. While the latter exclusive right applies to intellectual creations in the field of literature and the arts, such as novels, musical compositions or paintings, related rights protect certain performances and products in the cultural sector. They cover on the one hand the reproduction and marketing of existing works, such as the performance of a work by performing artists (eg singers and actors), the first publication or scientific edition of works in the public domain, and the production of phonograms, films and broadcasts. On the other hand, related rights protect products like simple photographs and films that do not satisfy the requirements for copyright protection.
Related rights thus have a close link to copyright, but concern a different subject matter. Consequently, they leave intact and in no way affect the protection of copyright (Art 12 Dir 2006/115 of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, Art 1 Rome Convention, Art 1(2) WIPO Performances and Phonograms Treaty (WPPT)). This means that a number of exclusive rights may coexist alongside each other with respect to a single product. For instance, with respect to a piece of music, the composer and the songwriter are entitled as authors, the singers and instrumentalists are entitled as performers, and the producer holds exclusive rights in the phonogram.
A special role is played by the protection of databases (database protection) such as telephone directories for which there may be a need for substantial investments but not for creative selection. Directive 96/6 of 11 March 1996 on the legal protection of databases grants the producer of such a database a sui generis right (droit sui generis). Accordingly, this right is often dealt with separately from other related rights in the Member States’ laws (as, for instance, in British, French and Spanish, but not in German law). The reason for this distinction is the subject matter of a database producer’s right. Unlike the related rights mentioned above, the protected object is not a specific result of an activity (a performance, a phonogram, etc) but rather the investment in a database. The decisive requirement for protection is whether a qualitatively and/or quantitatively substantial investment in either the obtaining, verification or presentation of the contents of the database has been made.
In spite of this doctrinal distinction, other related rights are also intended to secure and encourage investments. All the artistic achievements in question (performances, phonograms, films, broadcasts etc) can be easily reproduced, disseminated and communicated to the public. The prohibition of such activities and the resulting capability of the rightholder to charge a price above the marginal costs of a copy is intended to create an incentive for performances and the manufacture of the said products. It is precisely these considerations that underlie the protection of substantial investments in a database.
2. Trends in the development of the law
These functions of related rights are confirmed by historical analysis. In the days when performances were ephemeral singers, instrumentalists and actors could only earn income by making a personal appearance. However, the end of the 19th century saw the development in technology for the recording and reproduction of sounds and images which, while opening up new marketing opportunities, at the same time caused concern among performers and, above all, manufacturers of sound and picture recordings that third parties could save the costs of the performance or the initial recording by making and marketing unauthorized copies. Without exclusive rights, the incentive to perform and record works would be lost; in addition, it would be unjust to allow uninvolved third parties to benefit from the fruits of intellectual property.
In many cases, the regulation of related rights corresponded with this pattern, namely a new reproduction technology was followed by the demand for and the grant of exclusive rights. For example, the German and British legislatures reacted in 1910 and 1911 to the development of the phonogram by granting, respectively, a fictitious copyright to performing artists (§ 2(2) Gesetz betreffend das Urheberrecht an Werken der Literatur und Tonkunst) and a copyright to the manufacturer of the original phonogram. Where there was no legislative reaction to the new technologies, courts satisfied the needs for protection by broadly construing the existing copyright regulations (Gramophone Co v Cawardine  1 Ch 450 (HC); German Federal Supreme Court, BGH 31 May 1960, BGHZ 33, 1; Cour de Cassation, Cass. civ. 1er, 4 January 1964, D. 1964, 321) or by applying the general tort law provisions of civil law and unfair competition law (RG 7 April 1910, RGZ 73, 294; BGH 31 May 1960, BGHZ 33, 20, 38, 48).
The comprehensive codification of related rights only began after World War II. As generally occurs in intellectual property law, international conventions significantly influenced the development. The most important treaty was the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 26 October 1961. It provided for certain minimum rights and the principle of national treatment, according to which nationals of another signatory state must be granted the same protection as the country’s own nationals. In the 1990s, additional minimum rights were established by Art 14 TRIPS (trade-related aspects of intellectual property rights) and the WPPT. These conventions concerned the term of protection (50 years) as well as new economic rights and moral rights of performers. All international treaties leave it to the signatory states to determine the legal concept by which the beneficiaries are given the possibility of preventing unauthorized exploitations such as to prevent the reproduction of their performance.
This flexibility takes account of the fact that there are two fundamentally different concepts for the protection of ‘related rights’. The continental approach, as pursued since 1965 in Germany and many other EU Member States, makes a strict distinction between related rights and copyright in works of literature and art. This differentiation is unknown in Anglo-American copyright law. According to s 1 of the British Copyright, Designs and Patents Act 1988, sound recordings, films and broadcasts are included amongst copyright works. The producers of these cultural artefacts are referred to as authors in the same way as authors of individual and creative works. The differences are only taken into account at the level of the scope of individual rights. In particular, only performing artists and creators of literary and artistic works enjoy protection of their personal rights through moral rights.
The relevant European directives do not affect these conceptual differences but reveal a preference for the differentiated continental approach. Since the 1992 directive on rental right and lending right was passed, both the exclusive rights and their object have been referred to and regulated separately (works/Werke/oeuvres on the one hand and other subject matter/Schutzgegenstände/autres objets protégés on the other).
However, recently, there has been a trend towards approximating related rights to copyright under the heading of ‘intellectual property’. This is particularly true for the rights of performers and producers of phonograms. Pursuant to Art 20 WPPT, these rightholders now benefit from the prohibition of the need for formalities. The enjoyment and the exercise of these related rights must not, like copyright (Art 5(2) Berne Convention), be subject to any formality such as registration. Furthermore, the protection of works and related subject matters serves the same purposes. According to the Copyright Directive 2001/29 of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, ‘any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large’. In line with this, the exclusive rights, the exceptions and limitations (Arts 2, 3, 5 Dir 2001/29), and the consequences of an infringement (Dir 2004/48 of 29 April 2004 on the enforcement of intellectual property rights) are regulated in parallel. Finally, the Commission’s proposal to extend the period of protection of the rights of performers and producers of phonograms to 95 years (COM(2008) 464/3) should also be seen in this context. The proposal refers to the term of protection for works made for hire under US copyright law where, in the Anglo-American tradition, no distinction is made between the rights to original works of literature and art on the one hand and related cultural and organizational-technical performances on the other. As is the norm in the field of intellectual property law, European law shows a tendency towards a lower degree of differentiation.
Related rights are exclusive rights to reproducible and hence intangible performances. Their scope, however, varies according to the subject matter of protection.
Some related rights have an equivalent scope like copyrights in works of literature and arts. According to Art 4 Dir 2006/116 on the term of protection of copyright and certain related rights, any person who for the first time lawfully exploits a previously unpublished work shall benefit from a protection equivalent to the economic rights of the author of a copyright work. For the protection of scientific editions and simple photographs, German law also refers to copyright including moral rights (§§ 70 and 72 of the German Urheberrechtsgesetz).
Other related rights and the sui generis right for database producers are regulated independently from copyright. Some provisions are to be found in the systematic context of the economic rights and limitations of copyright (see Art 3 Dir 2006/115; Arts 2, 3(3), 5 Dir 2001/29), other aspects are codified separately from copyright (see Arts 7 to 10 Dir 2006/115). The latter approach can be observed if related rights are, as compared with copyright, reduced to a mere statutory claim to remuneration. This limitation of exclusivity is intended to prevent, for instance, performers blocking the broadcasting of phonograms to the disadvantage of authors (see Art 8 Dir 2006/115).
The duration of related rights is specified in Arts 3-6 Dir 2006/116. The rights of performers, producers of phonograms and films and broadcasting organizations expire 50 years after the date of the performance or first publication of the subject matter of protection; the period is 25 years for previously unpublished works and, optionally, up to 30 years for critical and scientific publications of works which have come into the public domain.
The protection of moral rights provided for in Art 5 WPPT has not yet entered Union law. The rights of the performers to be identified with respect to their performances and to prohibit any distortion, mutilation or other modification of their performances that would be prejudicial to their reputation, however, are to be found in national copyright legislation. Other holders of related rights do not enjoy a comparable protection since as a rule they are legal persons who provide a commercial and technical service.
The principles of copyright contract law are applicable to contracts concerning related rights. Thus, these exclusive rights can generally be assigned with or without restrictions and can be the subject matter of licence agreements.
Willy Hoffmann, ‘Die Konkurrenz von Urheberrecht und Leistungsschutz’ (1939) 12 Archiv für Urheber- und Medienrecht 96; Georges Straschnov, Svante Bergström and Paolo Greco, Protection internationale des ‘droits voisins’ (1958); Eugen Ulmer, Urheber- und Verlagsrecht (3rd edn, 1981); Owen Morgan, International Protection of Performers Rights (2002); André Lucas and Jacques Lucas, Traité de la propriété littéraire et artistique (3rd edn, 2006); William Cornish and David Llewelyn, Intellectual Property—Patents, Copyrights, Trade Mark and Allied Rights (7th edn, 2007); Silke von Lewinski, International Copyright Law and Policy (2008).
Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, with later amendments; Gesetz betreffend das Urheberrecht an Werken der Literatur und Tonkunst (LUG), 19 June 1901, RGBl 1901, 227, with amendments; International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 26 October 1961; Gesetz über Urheberrecht und verwandte Schutzrechte (UrhG), 9 September 1965, BGBl I 1273, with amendments; United States Copyright Act, 19 October 1976, Pub L No 94-553, 90 Stat 2541, with amendments, Copyright, Designs and Patents Act, 15 November 1988, ch 48; Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994; WIPO Performances and Phonograms Treaty (WPPT), 20 December 1996; Directive 96/9 of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77, 27 March 1996, 206; Directive 2001/29 of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 22 June 2001, 107; Directive 2004/48 of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, OJ L 157, 30 April 2004, 16; Directive 2006/115 of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version), OJ L 376, 27 December 2006, 28; Directive 2006/116 of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights, OJ L 372, 27 December 2006, 12; Proposal for a European Parliament and Council Directive amending Directive 2006/116 of the European Parliament and of the Council on the term of protection of copyright and related rights, 16 August 2008, COM/2008/464.