Germany has implemented the Incidental inclusion (Art. 5.3(i) InfoSoc) exception in Section 57 of the Act on Copyright and Related Rights (UrhG). The national exception closely resembles the EU exception.
Implementation summary:
This exception allows for the reproduction, distribution and communication to the public of works regarded as works incidental to the actual subject-matter being reproduced, distributed or communicated to the public.
Implementation details:
Beneficiaries:
- any user
Purposes:
- no specific purpose (the use has to be incidental)
Usage:
- reproduction
- distribution
- communication to the public
Subject Matter:
- works
Compensation:
- no compensation required
Attribution:
- no attribution required
Other Conditions:
- specific conditions set via case law must be observed in order for the work to be considered 'incidental'
Introduced/last updated: 01 January 1970
Remarks: According to the Bundesgerichtshof' ruling in the Moebelkatalog case (I ZR 177/13 of November 17, 2014) the exception must be interpreted narrowly. The evaluation as to whether the use is incidental or not, has to consider i) the viewpoint of the objective average observer; ii) the 'main object' of use; iii) whether the work included is only incidental compared to the main object of use. The BGH differentiated between a merely 'background role' and a genuine incidental role, which must comply with two conditions - interchangeability (the work is interchangeable with other works or could be entirely left out) and lack of relationship (conceptual, aesthetic etc.) between the incidental work and the main object.
