Persönlichkeitsrecht und Persönlichkeitsrechte bei Josef Kohler

E-ISSN： 1867-2523|6|4|443-469

ISSN： 1867-237X

Source： Zeitschrift fuer Geistiges Eigentum / Intellectual Property Journal, Vol.6, Iss.4, 2014-12, pp. : 443-469

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Abstract

Josef Kohler (1849–1919), law professor at the universities of Würzburg and Berlin and certainly the most prolific legal scholar of his time with 2.482 publications to his name, was regarded as an authority in German intellectual property law during his lifetime and this is true even today, as he created the notion of “Immaterialgüterrechte” (rights to immaterial goods). However, this paper examines Kohler's theory of personality rights and his contribution to that field of law. Firstly, Kohler showed that rights to immaterial goods and personality rights were two different categories of rights. Secondly, he developed the criterion for distinguishing between the two categories: “Immaterialgüterrechte” being tradable commodities, whereas personality rights are not transferable. Both his view of two different categories of rights and his criterion for distinguishing between them are valid still today. Thirdly, he contributed to exploring the scope of personality rights by addressing numerous legal problems connected with the violation of those rights and by suggesting solutions. For instance, he regarded it as necessary to award a compensation for the mental harm suffered by a violation of personality rights, and he addressed the issue of the duration of personality rights, i.e. questions concerning the personality rights of a deceased person. Fourthly, he derived the necessity to fight unfair competition from a general right to personality in a time well before the first German law against unfair competition was passed (1896). Thus, he furthered public awareness that unfair competition was a problem in an economic system of free competition and that it was the state's obligation to deal with that problem.