Ancillary copyrights are intended to protect artistic works and activities that are not protected by copyright. People whose activities are protected by ancillary rights have certain exploitation rights in order to be able to commercially exploit their artistic activities. 

The following activities and artistic projects are subject to ancillary copyrights: 

  • Works of art that do not meet the definition of Section 1 of the Copyright Act because they are not original enough (e.g. everyday photos);
  • Performing artists’ artistic performance;
  • The first publication of works of art whose copyright protection period has already expired (posthumous works);
  • Organisers receive ancillary copyrights for organising and showing artistic performances. This allows them to commercially exploit the event (e.g. by broadcasting it on television or live on the radio). 

Example: Performing artists include singers, actors, and dancers. Directors, choreographers, and conductors are entitled to the same protection. 

Attention: The performance of technical staff, such as lighting technicians, sound engineers, and stage managers, is not protected. 

As ancillary copyrights merely constitute a safety net for activities that are not protected by copyright, their protection is weaker. However, copyrights and ancillary copyrights are independent of each other and can also co-exist. 

Example: You compose and write the lyrics for a song. The song is a work of musical art, the lyrics are a literary work, and both are therefore protected by copyright. You are also a singer and record the song at the studio. You have ancillary copyrights to the recording.

A major difference to copyrights is that different rules apply to the term of protection:

  • The term of protection for a performing artist’s performance is 50 years from the date of their performance;
  • If the performance is recorded, the term of protection for performers and producers of phonograms is 70 years from the recording’s first publication or its communication to the public (broadcast, public performance, or interactive provision).

In contrast to copyrights, ancillary copyrights can also be transferred in full in certain cases. 

The following groups of people are entitled to ancillary copyrights for their activities:

  • Performing artists (performers): these are the artists who perform works (see the example above);
  • They have the following exploitation rights: the right to keep record of their performance (recording), its reproduction, and distribution, the right to interactive reproduction (e.g. on an internet platform such as a streaming service);
  • Artists only have broadcasting rights if an unlawfully produced image or sound recording is concerned (e.g. if someone has filmed a performance without authorisation). Otherwise, the recording’s producer is entitled to the broadcasting rights. However, performers are entitled to remuneration if others broadcast their performance.
    • If a recording company has produced a recording of an artistic performance, the performers are entitled to claim remuneration from them. They have no exploitation rights to the recording. 

Info: Performers can only claim remuneration for the broadcasting of a performance through a collecting society.

  • Organisers
    Organisers hold certain exploitation rights that enable them to decide on the commercial exploitation of artistic performances.
    • Performances that are staged as part of an event may only be recorded as video or audio media with the consent of the organiser(s) for them to be made publicly available.
    • Organisers have the exclusive right to broadcast the performance in real time on radio or television (if they have not already made a recording of the event and made it publicly available).
  • Recording companies
    A musical recording’s producers and sound engineers have similar ancillary copyrights as performers.
    • Recording companies have a right to reproduction and distribution. However, they are only entitled to remuneration from the broadcasting rights if the broadcast is carried out using legally acquired sound recordings.
  • Recording companies are generally the recipients of remuneration claims. Performers who contribute to production have no direct claim to remuneration; they are only entitled to a share of the remuneration from the recording company.
    • In the case of commercially produced sound recordings, the right belongs solely to the owners of the company that initiates and carries out the recording and bears the economic risk.
    • Recording companies’ ancillary copyrights are alienable and transferable.
  • Broadcasters
    Broadcasters and broadcasting companies have ancillary copyrights to the sounds and images transmitted by the organisation (signal protection). Broadcasters’ rights are freely transferable.
  • People who capture light and motion pictures (photos and films)
    In the case of films or photos that are not original enough to enjoy copyright protection, the person capturing the recording at least has an ancillary copyright to the recordings.
    • If it is a commercially produced photograph (e.g. an advertising company that hires commercial photographers), the exploitation rights belong to the company. Otherwise, they are held by the person who took the photograph.
  • Individual exploitation rights comply with copyright law (see the chapter on exploitation rights). However, there is one exception: using a photocopier to copy photos is not covered by the free use of works.
    • In the case of commissioned works, both the customer and the recorded person may make copies—even for paid purposes.
    • Ancillary copyrights are transferable.