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2003
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ISO Bulletin - Comment - December 2003

In Germany, the copyright to standards is no longer questioned

On 13 September 2003, a new German copyright law came into force. The amendment, to transpose the European Copyright Directive to German law, was largely the result of implementing the European Copyright Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society. The resulting gain was that for a private non-profit-making association such as the DIN Deutsches Institut für Normung, this means that the copyright to standards now has a secure legal basis.

In Germany, the copyright to standards is no longer questioned. In the past, numerous decisions in court took it for granted that standards, being the results of standardization work for public benefit, were copyrighted. However, a judgement passed by the Bundesgerichtshof, the German Federal High Court of Justice, decided otherwise in one case. According to this judgement, when public authorities referred officially to standards in laws and regulations – with the permission of DIN – and where such a reference could be interpreted as a declaration of intent (the content of the standard was meant to express the public authority’s will), standards would lose their copyright protection according to clause 5 of the German Copyright Act which states that official publications are excluded from its scope.

With the support of industry and the government, DIN succeeded in getting the law changed to clarify that DIN Standards retain their copyright provided they are only referred to in official publications, and are not reproduced in full. Loss of copyright for standards referred to in official publications would have meant a loss of millions of Euros for DIN, and would have endangered the ability of the stakeholders and beneficiaries of standardization to cover the costs of DIN’s non-profit work. Such a development would have put all DIN’s work at risk. The government would neither have been able to compensate DIN for loss of income, nor to produce the necessary standards itself.

Legislators ultimately could not ignore DIN’s argument that loss of copyright would be an unacceptable encroachment on the intellectual property status of standards, and would destroy the basis of standardization work as it was carried out by DIN for the benefit of all. On the one hand, sales of standards account for a considerable part of the necessary funding of DIN, and on the other, standards give those applying the law the best criteria for assessing conformity without incurring the costs of the development of the standards themselves.

For regulatory purposes, the principle of autonomy remains in force. The new copyright law means that DIN can continue to ease the burden of the government and to make a major contribution to deregulation. The new law also ensures that DIN remains an active member of European and international standards bodies. The conditions for membership of such bodies state that the results of collaborative work shall also be protected by copyright at national level, and DIN can now make sure this happens. DIN will continue to make an important contribution through its work in ISO and CEN (European Committee for Standardization) to reduce technical barriers to world trade.






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