BGH confirms opera 'Motezuma' was published in 1733

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 Sing-Akademie was of the view it had full copyright to the opera, contending that it was the first publisher of the first edition ('editio princeps') of this posthumous work and as such should be entitled to the exclusive exploitation rights to this 'posthumous work' under Article 71 German Copyright Act. By way of background information: Article 71 German Copyright Act provides that "...any person who causes a work which has not previously been published to be legally published for the first time or performs it in public for the first time after the expiry of the copyright shall have the exclusive right to exploit it."

In the current case, the Sing-Akademie demanded compensation from the organiser of the Düsseldorf based music festival 'Altstadtherbst' which had performed 'Motezuma' in September 2005 in Düsseldorf without the claimant's consent. The Regional Court Düsseldorf and (on appeal) the Higher Regional Court of Frankfurt both dismissed the Sing -Akademie's claim.

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.

Expert witness statements by renowned musicologists had further revealed the following historical facts: musical works which had been commissioned by Venetian opera house, such as the opera in question, were usually only staged for one season at the respective opera house. In addition, one copy of the musical score was usually deposited at the respective opera house to allow interested parties, such as foreign kings, to take copies of the music. The Federal judges acknowledged that it could not be proven with complete certainty whether this had been the case with 'Motezuma'. However the court took the view that the claimant had not been able to submit any evidence of different events and, as such, there was a high probability that the work had been published in the sense of Article 6(2) Sentence 1 German Copyright Act, when the music sheets had been handed to the participants of the premiere in 1733 and when a copy of the score had been deposited at the opera house Teatro St Angelo in Venice in 1733. The judges decided that the Venetian opera audience and other interested parties had the chance to access the score and make copies of it in 1733. In the light of the above, the court dismissed the claim.

When hearing about this case, the IPKat's first (rather naive) thought was that this should be an easy case to decide. A work, which was composed and premiered in 1733, should by now surely be out of copyright, no? Alternatively, if there were any existing rights in the work, then they would (perhaps) belong to Vivaldi's estate or the opera house where the work was premiered...? The IPKat is certainly impressed how the court managed to reconcile common sense with the relevant provisions in the German Copyright Act. It all just seems rather complicated.

More information about Antonio Vivaldi can be found here.
More information about Sing-Akademie zu Berlin can be found here.
A night at the cat opera, here.
Information about various Montezumas, can be found here.
BGH confirms opera 'Motezuma' was published in 1733 BGH confirms opera 'Motezuma' was published in 1733 Reviewed by Birgit Clark on Friday, January 30, 2009 Rating: 5


  1. A very German judgment... :-)

  2. I've never been entirely convinced of the logic of this kind of historical exploitation right - it seems to stretch the usual argument (that the purpose of copyright is to encourage the creation/publication of copyright works) to breaking point.

    Has anyone ever produced evidence to show that this kind of provision has any demonstrable effect on the discovery and publication of such works?

  3. Since Sing-Akademie had the only known copy of the music in existence, couldn't they have exploited the work using contract law?


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