Die Ausnahme vom Urheberrechtsschutz für amtliche Werke Zur Reichweite des § 5 UrhG nach deutschem und europäischem Recht

Para. 5 German Copyright Act excludes official works from copyright protection. The Act, however, does not define the term »official work«, and despite extensive case law the scope of the provision remains unclear. In particular, it is disputed whether works by private authors can lose copyright protection and become public domain as official works pursuant to para. 5 German Copyright Act. Furthermore, the provision's analogous application to neighbouring rights is controversial. This is a problem especially with regard to non-original databases that are protected by the sui generis right introduced by the European Database Directive (Directive 96/9/EC). In light of two recent decisions by the German Federal Supreme Court – one seeking a Preliminary Ruling of the ECJ according to article 234 EC – the essay seeks to delineate the scope of para. 5 German Copyright Act under German and European law. It will be shown that the legal consequences of para. 5 German Copyright Act are effective qua lege and thus irrespective of whether the official work was created by public authorities or private authors. For the same reasons, according to the German Copyright Act the copyright exception for official works must be extended by analogy to subjects of neighbouring rights. However, regarding non-original databases – protected by neighbouring rights pursuant to paras. 87a ff. German Copyright Act – this interpretation of German law is inconsistent with the Database Directive, which does not provide a respective exception from sui generis protection.