Definition and meaning of the term facsimile
Ein Facsimile is an exact reproduction or copy of an original template, especially of documents, artworks, or records. The term comes from Latin (“fac simile” = “make alike”) and refers to a reproduction that is as detailed as possible, preserving both the outward appearance and specific features such as signatures, seals, watermarks, or discolorations. In a legal context, the facsimile is particularly considered in connection with the reproduction of documents, signatures, and certificates.
Facsimile in law
Facsimile as reproduction of documents
Facsimiles are often used for the preservation, archiving, and public access to historical documents and records. Especially in archives, libraries, or research institutions, facsimile prints are employed to protect valuable or fragile originals. Legally, it is important to note that a facsimile never replaces an original document, but is always considered a copy, reproduction, or replica.
Legal classification of facsimile copies
Evidentiary value of facsimiles
In civil procedural law, a distinction is made between originals (“Urschriften”), simple and certified copies, and facsimiles. Facsimiles generally have the same evidentiary value as other copies: they serve for illustration and information, but in most cases are not suitable as a direct substitute for the original, for example when submitting records in documentary proceedings (§§ 416 ff. Code of Civil Procedure – ZPO). A document created as a facsimile does not constitute an original within the meaning of evidentiary law and therefore does not have the same direct evidentiary value as the original document.
Admissibility in the use of facsimiles
Whether and to what extent facsimiles are admissible as evidence depends on substantive law and the specific subject of evidence. According to § 420 ZPO, transcripts or photocopies are permitted, provided the authenticity or conformity with the original is not disputed and the reproduction is sufficiently accurate. As a rule, it is the court’s responsibility to verify the authenticity of the facsimile copy and, if necessary, to require submission of the original.
Facsimile signature and its legal consequences
Definition and areas of application of the facsimile signature
Die Facsimile signature is a print or electronically produced reproduction of a handwritten signature. It is particularly used in mass correspondence, accounting, or on forms. In contrast to a handwritten signature, the individual intention to declare with respect to the specific document is lacking.
Effectiveness and legal validity
Facsimile signature in general legal transactions
In general business transactions, facsimile signatures can generally be used for many documents, for example, in information letters, circulars, or advertising mail. However, as soon as documents are subject to legal formal requirements, the facsimile signature is viewed critically from a legal standpoint.
Written form requirement (§ 126 BGB) and facsimile signature
Under German law, many declarations must be made in writing (with a handwritten signature) to be effective (§ 126 German Civil Code – BGB). The personal handwritten signature requires a handwritten name drawn by the declaring party. A facsimile produced by print, stamp, or copying process generally does not meet this requirement. If statutory form requirements are not met due to the use of facsimile signatures, the legal transaction in question is null and void (§ 125 sentence 1 BGB).
Examples of relevant written form requirements:
- Consumer loan agreements (§ 492 para. 1 BGB, § 126 BGB)
- Testament (holographic will under § 2247 BGB)
- Termination of lease agreements (§ 568 para. 1 BGB)
- Guarantee declarations (§ 766 BGB)
- Promise of donation (§ 518 BGB)
Distinction: electronic signature and facsimile signature
Since the entry into force of the Trust Services Act (VDG) and the eIDAS Regulation, electronic signatures are considered equivalent to handwritten signatures under certain conditions. However, the facsimile signature is by no means equated with a qualified electronic signature under these regulations.
Special cases: authorities and administrative law
Even in administrative law, the use of facsimile signatures is partly permitted as long as no legal formal requirements demand a handwritten signature. Authorities can sign certain documents with a facsimile signature, provided the authenticity of the document is otherwise guaranteed.
Copyright aspects of facsimiles
Protection of originals and reproductions
Facsimile products may be relevant under copyright law if the original template or the facsimile itself enjoys copyright protection. According to § 2 of the Copyright Act (UrhG), the protection primarily applies to the original template (e.g., artwork, handwriting). The mere facsimile is generally not considered an original creative work and is therefore not eligible for protection, unless it derives its own copyright character through editing, selection, or special presentation.
Permissibility of facsimile production and distribution
The production of facsimiles generally requires the consent or license of the right holder if the original work is still subject to copyright protection. For works in the public domain (e.g., documents for which the protection period has expired), making facsimiles is permitted. The publication, distribution, or commercial use may be subject to further legal restrictions (e.g., exploitation rights, property rights to originals, data protection).
Special aspects for archives and libraries
Special limitations (§§ 53, 60e, 60f UrhG) apply to archives and libraries, which under certain conditions also allow independent facsimile production for preservation purposes or scientific use.
Criminal law assessment and facsimile
Forgery of documents and use of facsimiles
The criminal relevance of using a facsimile arises particularly in connection with the offense of document forgery (§ 267 Penal Code – StGB). Anyone who creates, uses or alters a false facsimile document to deceive in legal transactions, in such a way that it gives the impression of a genuine and legally binding original, is liable to prosecution. The mere production of a facsimile is not punishable as long as there is no intent to deceive or risk of confusion with a genuine document. However, using facsimile signatures instead of the required personal signature can, in individual cases, fulfill elements of criminal offenses.
Summary
In a legal context, a facsimile is a faithful reproduction of documents, writings, or works, but it is never equated with the original. Facsimiles can be used as evidence, but usually do not replace the original document. Of particular legal importance is the use of facsimile signatures: They generally do not fulfill the requirements for statutory written form, so their use regularly leads to a lack of form. Copyright and criminal law aspects also play an important role in the creation and use of facsimiles. Relevant regulations are found in the Civil Code, the Copyright Act, the Code of Civil Procedure, and the Penal Code.
Frequently Asked Questions
Is a facsimile protected by copyright?
A facsimile is an exact reproduction of an existing work. Legally, copyright protection of the facsimile depends on whether the original work is still protected by copyright. If copyright still applies (generally 70 years after the creator’s death), the consent of the right holder is required for the creation, reproduction, and distribution of a facsimile. The mere reproduction of a public domain work (i.e., one for which protection has expired) does not create new copyrights for the facsimile itself, provided the reproduction is of a purely technical nature and involves no personal creative contribution. However, if some creative input is added during the creation of a facsimile—such as through editing, restoration, or artistic intervention—this may, if applicable, establish its own (even if weak) copyright or related protective rights for the reproduction. In addition, related rights of the photographer or the publishing house may be relevant if photographic works of a creative nature are produced during reproduction.
What legal requirements must be observed when reproducing facsimiles?
The reproduction of a facsimile can touch on various legal requirements. If the original is a work that is still protected by copyright, the express permission of the right holder is necessary both for the creation of the facsimile and for its subsequent reproduction; this also applies to the use of the original (for example in archives or libraries), where additional contractual restrictions often exist. If the depicted work is in the public domain, copyright restrictions are lower, but rights such as photographic protection (§ 72 UrhG) or post-contractual user rights of third parties may regulate reproduction. In addition, for facsimiles of artefacts under heritage or monument protection, additional public-law permits or the owner’s consent may be required. The use of facsimiles in digital media may also be governed by specific licensing models (e.g., Creative Commons) that must be considered when distributing and reproducing them.
Can I publish or sell a facsimile without the copyright holder’s consent?
The publication or sale of a facsimile is subject to strict copyright requirements. If the underlying work of the facsimile is still protected by copyright, the permission of the right holder (e.g. the creator or a publisher) is mandatory; otherwise, claims for injunctive relief and damages may arise. For public domain works, this is generally permitted, as long as the reproduction does not result in new features protected by copyright (such as artistic adaptations, elaborate photographic implementation, etc.) that themselves can create rights. Existing related rights of facsimile creators (e.g. photographers) may also be relevant in these cases. Caution is advised if the facsimile originates from an institution (museum, archive), as these institutions typically set their own terms of use and license agreements that may restrict or govern publication or sale.
What legal risks exist when using a facsimile for scientific or artistic purposes?
Using facsimiles in scientific or artistic contexts can rely on various legal bases, such as the right of quotation (§ 51 UrhG) or the science exception (§ 60a ff. UrhG). Nevertheless, care must be taken: while the right of quotation allows the use of protected works in accordance with accepted scientific practice and subject to citation, making and using entire facsimiles is usually not covered by these limitations. Scientific use generally requires that only excerpts or parts of the original are used, and only if necessary for explanation or evidence. In artistic engagement with facsimiles, the so-called free use (§ 24 UrhG old version, now § 51a UrhG) is relevant, which requires a sufficient creative distance from the original through one’s own creative contribution. In addition, special rules may apply to museums, archives, and collections, which can protect even public domain works by virtue of their house rules or specific license terms. It is therefore advisable to carefully review applicable rights and license terms.
When does creating a facsimile establish its own protective right?
The mere technical reproduction, such as a 1:1 photograph or scan of an old, public domain document, does not generally establish any copyright in the facsimile itself. The situation is different if the creation of the facsimile involves its own creative contribution, such as through artistic interpretation, subsequent coloring, montage of various originals, or creative image editing. In these cases, the resulting work can be protected as an adaptation (§ 3 UrhG) or as an independent photograph (§ 72 UrhG) with its own related protection rights. Simple photographic reproductions of public domain originals enjoy at least 50 years of protection after the photo was taken in Germany (§ 72 para. 3 UrhG) if they are considered photographs within the meaning of copyright law—a relevant rule especially in the context of scientific facsimiles, archive digitizations, and high-quality reproductions.
What is the significance of the house rules of archives or museums regarding the use of facsimiles?
Many archives and museums, regardless of the copyright status of the original and facsimile, make use of their house rules to control the use, reproduction, publication, and distribution. House rules allow these institutions to set their own rules and licensing terms—for example, a prohibition on passing on or commercially using facsimiles, digital copies made by them, or copied documents. Even if no copyright exists in the facsimile itself, use may be restricted or subject to price conditions by unilateral licensing terms (e.g., when ordering digital copies). Breach of these agreements can have civil law consequences, especially claims for injunctive relief and damages. It is therefore important to always check the contractual terms of use of the issuing institution before further using facsimiles.
