In a case concerning a lost composition by Italian composer Antonio Vivaldi, the German Federal Supreme Court (Bundesgerichtshof) this week clarified the circumstances under which a work may be considered as 'not published' under section 71 German Copyright Act, with the consequence that the first publisher of the respective work owns the exploitation rights for the work.
The IPKat has read the Bundesgerichtshof's press release (case reference: I ZR 19/07 - Motezuma of 22 January 2009, the decision is not yet available in its entirety) with interest and has translated and summarised this unusual case below:
The claimant in the proceedings was the Sing-Akademie zu Berlin, who owns an archive of handwritten manuscripts of musical compositions. In 2002, the long lost music sheets of the Vivaldi opera 'Motezuma' were discovered in the Berlin archive. The court established that it was a known fact that the opera 'Motezuma' had had its premiere at the Teatro St Angelo in Venice in 1733, eight years before the famous composer died in 1741. However, while the opera's libretto was still available after the premiere, the music had been considered as lost. After the original handwritten composition was discovered in the Berlin archives, the claimant decided to publish and sell reprints of the original handwritten musical sheets.
The Federal Supreme Court has now decided that the first publisher of the first edition of a 'posthumous work', who claims to own the exploitation rights to the work, has the burden of proof to show and demonstrate that the work in question had indeed 'not previously been published'. The Federal judges acknowledged that it was rather difficult to prove the non-existence of a fact, particularly because it had be proven that a century old musical work had not previously been published. Taking this into consideration, the court ruled the the claimant was allowed to initially just allege that the work had so far not been published. It was for the defendant to demonstrate evidence to the contrary, i.e. by showing circumstances which supported that the work had indeed been published. According to the court, the claimant could only fulfil its burden of proof if it was able to rebut the evidence brought forward by the defendant, i.e. if it could successfully deny the circumstances shown by the defendant. The IPKat admits that this is not a straightforward case but bear with the Kat... the solution is close.
Applying these principles to the current case, the Bundesgerichtshof decided that the claimant had not sufficiently rebutted that Vivaldi's opera 'Motezuma' had not been published previously. The court referred to Article 6(2) Sentence 1 German Copyright Act, which stipulates that "... a work shall be deemed published if, with the consent of the copyright owner, copies of the work have been produced in sufficient quantity and have been publicly offered for sale or put into circulation. " As such, a work is deemed published, when number of copies published is sufficient to allow the interest public to access the work. In the light of these provisions the court concluded that the opera 'Motezuma' had already been 'published' in 1733.