fair dealing

noun · Schranken des Urheberrechts

There is no German fair dealing and no fair use. German law works with an enumerated list of Schranken, statutory exceptions such as quotation, private copying and teaching use, each with its own conditions, and a use that fits none of them is an infringement however reasonable it looks. Translating either English term as a general fairness test misdescribes the system.

Which translation, when

Schrankenthe enumerated exceptions: German copyright limits the author’s rights through a catalogue of individual provisions rather than a general clause, covering among other things quotation, reproduction for private use, uses in teaching and research, reporting on current events and the incidental appearance of a work; each provision carries its own conditions, and some of them require payment through a collecting society even where the use is permitted.

Zitatrechtthe one translators meet most: quotation is permitted only for a purpose, the quoted material serving as evidence or as a subject of discussion in an independent work, and it must stay within the extent that purpose justifies, be attributed and leave the quoted text unaltered, so decorating a piece with a striking passage is not covered.

keine Generalklauselthe systemic point: fair use asks openly whether a use is fair on a weighing of factors, and fair dealing works with defined purposes but still asks about fairness, whereas the German catalogue asks first whether the use falls under a provision, the Court of Justice having confirmed in 2019 that fundamental rights cannot justify a departure outside the catalogue while requiring the provisions themselves to be read so as to preserve their effectiveness and to balance the competing fundamental rights in the individual case; a translation that renders either English term as angemessene Nutzung invents a test German courts do not apply, and the infringement consequences belong to their own entry.

Why

Fair dealing has no German equivalent, and that absence is the content of this entry. English law permits certain dealings with a protected work for defined purposes, such as research, criticism, review and news reporting, and asks in addition whether the dealing is fair; American law goes further with fair use, an open weighing of the purpose of the use, the nature of the work, the amount taken and the effect on the market. German copyright does neither. It limits the author’s rights through an enumerated catalogue of Schranken, individual provisions each defining a permitted use and its conditions, among them quotation, reproduction for private use, uses in teaching and research, reporting on current events, public speeches and the incidental inclusion of a work. The list is exhaustive, and the Court of Justice confirmed in 2019 that not even the freedom of expression or of the press can justify a departure outside it, which is why a German provision permitting free use beyond the catalogue could not survive; what the same case law abandoned is the old reflex of construing the exceptions narrowly, since the provisions must now be read so as to safeguard their effectiveness and to weigh the competing fundamental rights on the facts. A use that falls outside every provision infringes even where a common-law court would call it eminently fair. Two consequences follow for translation. The first is lexical: fair dealing and fair use should not be rendered with an invented German phrase suggesting a fairness test, and where a source discusses the English or American doctrine the honest course is to keep the English term and explain it, while a German situation is described through the specific Schranke in play. The second is practical: the exception translators meet most often is the right of quotation, which requires a genuine quoting purpose, an independent work that engages with the quoted material, proportionality of extent, attribution of the source and fidelity to the quoted text, so a decorative quotation is not privileged. What follows from an unprivileged use is held by the infringement entry.

Typical mistakes

German law has no general fairness test, so translating fair dealing or fair use as an open standard invents a doctrine the courts do not apply.
The Schranken are enumerated and construed narrowly, so a use outside every provision infringes however reasonable it appears.
Quotation requires a quoting purpose, attribution and fidelity to the text, so decorative use of a passage is not covered.

What matters

Advising on the reuse of protected German material: the note should abandon the fairness vocabulary, identify the specific Schranke that might permit the use, and check its conditions, above all the quoting purpose and the attribution requirement.

Authority

§ 51 UrhG
§ 53 UrhG

What the machine misses

Machine output turns fair dealing into faire Nutzung or angemessene Verwendung, inventing a German fairness test, while German copyright works with an enumerated catalogue of Schranken such as quotation and private copying, each with its own conditions; the invented phrase encourages exactly the reasoning German courts refuse, that a use must be lawful because it seems reasonable.

See what the machine does with this clause →

Examples

fair dealing	Schranken des Urheberrechts
the right of quotation	das Zitatrecht
reproduction for private use	Vervielfältigung zum privaten Gebrauch
the source must be stated	die Quelle ist anzugeben