Urheberrechtliche Regulierung der Digitalisierung vergriffener Periodika aus den dreißiger Jahren
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The article discusses the copyright framework for the digitization of historical newspapers from the 1930s by cultural heritage institutions. Newspaper articles, photos and illustrations contained in the periodicals as well as the newspaper itself, being a collection of works (§ 4 UrhG), may be protected by copyright. As the protection of the articles expires only 70 years after the author's death (§ 64 UrhG), they will not be in the public domain within the next decades – with the only exception of anonymous and pseudonymous works, in which the copyright only subsists for 70 years after publication (§ 66 UrhG) and which therefore are already in the public domain.The relevant exploitation rights have not been transferred to the publishers, but lie with the authors. Due to the vast number of rightowners involved, it is neither feasible to conclude licensing agreements nor to rely on the limitation applicable to orphan works (§ 61 UrhG transposing the Orphan-Works-Directive 2012/28), which requires a diligent search for each individual rightowner. Furthermore, especially authors of newspaper articles published in periodicals during the Nazi regime may not always be willing to grant a licence for the republishing of their works.Thus, memory institutions may only make digitised periodicals available within the narrow ambit of § 52 b UrhG, which permits the on-the-spot-consultation on the premises of memory institutions for the purpose of research. Although the CJEU and the Bundes-gerichtsh of in TU Darmstadt/Ulmer have interpreted this limitation in a science-friendly way, the provision does not provide an adequate framework for the scholarly exploitation of the digitized works including contemporary methods, such as remote access or data driven analyses. Because of the restrictive parameters set by Art. 5 Abs. 3 n) of the InfoSoc-Directive 2001/29, the German legislator has no leeway to introduce more liberal limitations in favour of research. However, new impulses may derive from legislative proposals announced by the European Commission in their Communication »Towards a modern, more European Copy-right Framework« from December 2015 in order to support remote consultation in closed electronic networks for research and private study. Perspectively, the national extended collective licensing mechanism for out-of-commerce works, which has recently been introduced by § 13 d UrhWG, may – despite of certain criticisms – provide a satisfactory option for granting access to and allowing for the scholarly investigation of historical newspapers. However, at the moment the mechanism is only applied to books and not yet to periodicals.