Concept and Definition of Editing in Law
Editing is a central term in German and international law, and is used in various areas of law. The term describes processes in which an existing object, work, or right is changed in content, form, or technically so that a new, but derived result emerges from the original. The legal assessment and protection of edited content are of high relevance, particularly in copyright law, but also in civil law, criminal law, labor law, and industrial property protection. The following presents the various legal aspects as well as the significance and distinctions of editing in detail.
Editing in Copyright Law
Principles and Legal Foundations
In the German Copyright Act (UrhG), editing holds a central role. According to § 23 UrhG, the editing or other adaptation of a copyright-protected work generally requires the consent of the author. The resulting edited work is a derived achievement, but it can also acquire independent copyright protection if it meets the requirements of so-called “individual creativity” (Schöpfungshöhe).
Distinction: Editing and Free Use
According to the legal system, editing must be distinguished from free use as per § 24 UrhG (prior to the amendment by the Copyright Reform 2021). While no consent from the original author was required for free use, consent was always necessary for editing. Since the revision, the concept of free use plays a subordinate role in German copyright law, so edits continue to require authorization unless they fall under statutory limitations, such as quotations under § 51 UrhG.
Editor’s Copyright
If an edit is made with the rights holder’s consent and achieves its own level of creativity, the editor may assert their own copyright claims to the edited work. The editor’s copyright is, however, always restricted by the original copyright (so-called “rights derived from the editor”).
Practical Examples
Typical cases of copyright editing include the translation of novels, the adaptation of musical works, and the adaptation of stage plays for film or television.
Editing in Civil Law
Case Processing and Legal Consequences
In civil law, editing generally comprises the processing or transformation of movable items (§ 950 BGB). Whoever creates a new movable item through editing becomes its owner, provided the value of the editing does not substantially fall short of the value of the original item. Distinctions to transformation, processing, and mixing pursuant to §§ 946 ff. BGB are particularly significant here.
Editing of Contracts
When editing contracts—for example, in the adjustment of contracts—the original document is modified. The legal admissibility and effectiveness depend on the parties’ intentions and the limits of private autonomy.
Editing in Labor Law
Term within Employment Relationships
In labor law, the term editing is used to describe activities in which employees process or modify the work results of others. Particularities arise when editing leads to copyright-relevant works, as in such cases the employer usually receives the rights of use according to § 43 UrhG, unless otherwise agreed.
Editing in Industrial Property Protection
Protection Rights for Technical Inventions
In industrial property protection, particularly in patent law and design law, editing refers to the creation of derivative products by modifying existing protected objects. Editing here can, for example, constitute a patent infringement if protected technical teachings are adopted or expanded.
Design Law and Design Protection
In design law (Design Act), editing involves modifying a registered design. Whether the edit possesses an independent protectability depends on the degree of creativity and individuality achieved in relation to the original form.
Editing in Criminal Law
Copyright Infringement through Unauthorized Editing
Criminal offenses arise in particular in copyright law when works are unlawfully edited and exploited (§ 106 UrhG). Unauthorized editing may result in both civil law cease-and-desist and damages claims as well as criminal sanctions.
Editing in Administrative Law
File Handling and Administrative Proceedings
In administrative law, the term editing often refers to the processing of files, applications, or administrative acts by authorities. The legal foundations for handling administrative proceedings can be found, among others, in the Administrative Procedure Acts of the federal government and the states (e.g., § 10 VwVfG).
Distinctions and Particularities
Editing, Processing, and Modification
It is necessary to clearly distinguish editing from similar terms such as processing or modification. Editing primarily refers to the targeted alteration of an existing intellectual or physical object, with the original work or item remaining recognizable in its essential features.
Relevance in Digitalization
In the digital age, editing digital content (e.g., remixes, collages, mash-ups) is becoming increasingly significant. Legal protection and the distinction from independent works or permissible uses are the subject of ongoing discussions and continual legal development.
Summary
Editing is a term used in many contexts with significant legal implications. It spans from copyright edits and civil-law modifications to aspects of labor law, industrial property protection, and issues of criminal and administrative law. The focus is always on the legality of the change and the resulting legal consequences for the parties involved. Assessing each individual edit regularly requires a precise review of the relevant legal provisions as well as a careful distinction from other related terms.
Frequently Asked Questions
When is the editing of a copyright-protected work legally permissible?
The editing of a copyright-protected work—for example, through translation, adaptation, shortening, extension, or other means—is, according to § 23 UrhG, generally only permissible with the consent of the author or rights holder. There is an exception only if the new work, as free use, attains such independence from the original that the creative character of the original fades away (§ 24 UrhG old version; modified from 7 June 2021 by the ‘UrhR-Diensteanbieter Act’ and the changeover to new free use rules). If there is no free use, any editing without the rights holder’s consent constitutes copyright infringement and can give rise to both civil and criminal consequences. Additionally, it should be noted that even in cases of permitted editing, exploitation rights to the edited work (e.g., publication or reproduction) may only be exercised with the consent of the rights holder.
Must the editor of a work also be named as an author?
If the editing of a work goes beyond mere technical execution and constitutes a personal intellectual creation, the editor may obtain authorship rights to the editing (§ 3 UrhG). In such a case, the editor is also entitled under § 13 UrhG to be recognized as the author, for example by being named upon publication of the edit. However, this does not affect the rights of the original author to the original work; exclusive exploitation of an edit remains fundamentally excluded without the original author’s consent, unless the edit qualifies as free use.
Are there special copyright obligations for edits of works within the scope of employment or contractual relationships?
In particular, in employment or contractual relationships, the contractual arrangement is crucial. In employment contracts, rights to edit and use works are often extensively transferred to the employer or client. If such a transfer of rights does not exist or is incomplete, all copyrights—including those to edits—essentially remain with the employee or contractor. The employer may then only use the edited work to the extent that rights have been granted to him. Therefore, it is advisable to have a clear contractual agreement, especially regarding future edits and the authorization to use them.
What are the legal consequences of unauthorized editing?
Editing without the necessary consent of the rights holder constitutes a copyright infringement. The rights holder may make claims against the editor for injunctive relief and damages (§§ 97 ff. UrhG). In addition, criminal prosecution under § 106 UrhG is possible. It should also be noted that the edit itself—if it is based on an unlawfully edited work—generally may not be exploited, even if independent creative contributions have been incorporated into the edit.
What is the role of the author’s moral rights in the editing of a work?
In addition to proprietary rights, the Copyright Act also protects the author’s moral rights, particularly the right to be recognized as the author and the right to protection against distortion (§ 14 UrhG). This means that the author generally has the right to prohibit edits to his work that are liable to endanger his legitimate intellectual and personal interests in the work. This can apply even if the editor is otherwise allowed to exploit the edited work—for example, if the edit results in a distorting or derogatory change.
Are edits of works in the public domain subject to copyright law?
If the original work is in the public domain—that is, the copyright has expired (usually 70 years after the author’s death)—edits can generally be made without copyright restrictions. However, even in such cases, new copyrights may arise if the editing itself is a personal intellectual creation. The newly created edited work is then protected by copyright again. Any participation of old rights (e.g., image rights or personality rights) is, however, excluded, unless they pertain to other branches of law.
To what extent does the right of editing also apply to digital works and computer programs?
The right to editing also applies to digital works and computer programs. Computer programs are likewise protected as works by the UrhG (§ 2 para. 1 no. 1 UrhG). Changes, extensions, or translations of program code constitute edits and, under § 69c UrhG, are reserved exclusively to the rights holder. Only for necessary program changes as part of a permitted use (e.g., for bug fixes or interoperability) are there certain exception provisions, which must be interpreted narrowly. For other digital works (e.g., images, audio, video), no special rules apply—the right to edit and exploit the edit remains with the rights holder, unless usage rights are granted within the framework of statutory limitations.
