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You republish a book from 1923 without asking anyone.

The original publisher (or its successor) sues you.

Do you need to proof that the author is 70 years dead already, or lies the burden of proof on the publisher?

2 Answers 2

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It depends on the argument

The person suing (Plaintiff) needs to make a case that is prima facie reasonable and contains all needed details. This includes showing that they own a valid copyright/exclusive usage license - which is established by showing the trail of holders of the right from the work's creation to now. Because copyrights expire after the death of the author, a valid copyright upon which a descendent could sue would require showing that less than 70 years after the author's death have passed. They could show so trivially by showing the death certificate of the author, proving that the author died at most 70 years ago.

If the defendant tries to claim that the copyright is expired, it is upon the defendant to prove this. It would be upon the defendant to prove that the work was made by someone that passed more than 70 years ago at the time of the alleged copyright violation.

In general, in a civil claim, it is upon the moving party to offer up facts that support their claim.

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  • I'm not very familiar with the German legal system, but I don't understand how this can be correct. Can it really be that the burden is on the plaintiff, until the defendant raises expiration as a defense? Why would a defendant ever raise the defense and take on that burden when he can just wait for the plaintiff to fail to prove it and point that fact out?
    – bdb484
    Jul 5, 2023 at 23:04
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    @bdb484 If the defendant isn't able to prove that the author died 70 years ago, that doesn't necessarily mean that the suer wins the case. If he cannot prove his view, he won't get a penny either as you can only benefit from a copyright if you really hold it.
    – PMF
    Jul 6, 2023 at 4:47
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    @bdb484 Say the plaintiff argues the author died on day X, which makes copyright is applicable, they have to prove that, usually with a death certificate. But if defendant counter-argues bob died on Y and the copyright is expired, they have to prove that. That's why I said "it depends" because the party offering the claim that the copyright is within/out of copyright needs to prove their point.
    – Trish
    Jul 6, 2023 at 6:31
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    @bdb484 The plaintiff has to make a credible claim that they were harmed in some legally-actionable way, or there is no case to begin with. You can dispute the facts that their claim rests on, but first they have to say "yes, we are entitled to copyright protection because blah de blah."
    – hobbs
    Jul 6, 2023 at 14:26
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    @RonJohn German copyright does not allow a company to own the actual copyright (urheberrechte), but only to buy the economic rights. As a result, no copyright or economic right in Germany extends beyond 70 years after the author's death.
    – Trish
    Jul 6, 2023 at 21:08
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Short answer: §§ 64 ff. UrhG is not a defense (Einwendung) but an integral/constitutional component of copyright. Accordingly the party favoring the fact that a work is (still) copyrighted has the burden of proof.


Long answer: Copyright cases are divided into four steps:

  1. Copyrightable work? (Urheberrechtlich geschütztes Werk?)
  2. Applicable exploitation rights? (Tangierte Nutzungsrechte?)
  3. Exceptions? (Schrankenregelungen?)
  4. Damages. (Schadensersatz)

In a civil action suit parties need to present facts, § 282 ZPO (Beibringungsgrundsatz). The court/state does not investigate anything. That means the plaintiff contending that he has a claim for damages needs to demonstrate that it’s a copyrightable work, they are the copyright holder, and you infringed their rights. For the last item you may face an obligation to disclose certain evidence as per §§ 101 ff. UrhG.

The plaintiff can actually simply claim anything; until you dispute their claims it is believed to be true, § 138 Ⅲ, 288 ZPO. Yet still, lying about hard facts is forbidden, § 138 Ⅰ ZPO (Wahrheitspflicht). Claiming the work’s creator was alive in 1952 even though they very well know he was not is illegal.

On the other hand since you are relying on §§ 64/65 Ⅰ, 129 Ⅰ 1 UrhG, that is the circumstance copyright has expired 70 complete calendar years after the (last co)author’s death, § 69 UrhG, you will need to contest any claim copyright did not expire (subjektive Behauptungslast). No copyright protection → no damages. Otherwise it is believed there was no issue about this.

The plaintiff will then again need to produce evidence that copyright has not expired. It is the plaintiff who seeks damages under § 97 Ⅱ 1 UrhG so they have the burden of proof regarding all requirements of this legal basis.

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