In a case concerning a lost composition by Italian composer Antonio Vivaldi, who died in 1741, the German Federal Supreme Court (Bundesgerichtshof) has clarified the concept of ‘published’ and indeed ‘not published’ under section 71 German Copyright Act. The claimant in the proceedings was the Sing-Akademie zu Berlin, which owns an archive of handwritten manuscripts of musical compositions. In 2002, the long lost music sheets of the Vivaldi opera ‘Motezuma‘ were discovered in the Berlin archive. The question arose whether or not the work had been first published in or around 1733 (when a premiere took place). The court found that while the opera’s libretto was still available after the premiere, the music had been considered as lost. After the original handwritten composition was discovered in the Berlin archives, the claimant decided to publish and sell reprints of the original handwritten musical sheets. The claimant was of the view it had full copyright to the opera, contending that it was the first publisher of the first edition (‘editio princeps’) of this posthumous work and as such should be entitled to the exclusive exploitation rights to this ‘posthumous work’ under Article 71 which provides that “…any person who causes a work which has not previously been published to be legally published for the first time or performs it in public for the first time after the expiry of the copyright shall have the exclusive right to exploit it.” and as such claimed compensation from the organiser of the Düsseldorf based music festival ‘Altstadtherbst’ which had performed ‘Motezuma’ in September 2005 in Düsseldorf without the claimant’s consent. The Regional Court Düsseldorf and (on appeal) the Higher Regional Court of Frankfurt both dismissed the Sing -Akademie’s claim. Birgit Clark from the IP Kat writes that the Federal Supreme Court has now decided that the first publisher of the first edition of a ‘posthumous work’, who claims to own the exploitation rights to the work, has the burden of proof to show and demonstrate that the work in question had indeed ‘not previously been published’. The and taking this into consideration, the court ruled the the claimant was allowed to initially just allege that the work had so far not been published. It was for the defendant to demonstrate evidence to the contrary, i.e. by showing circumstances which supported that the work had indeed been published. According to the court, the claimant could only fulfil its burden of proof if it was able to rebut the evidence brought forward by the defendant, i.e. if it could successfully deny the circumstances shown by the defendant. Applying these principles to the current case, the Bundesgerichtshof decided that the claimant had not sufficiently rebutted that Vivaldi’s opera ‘Motezuma’ had not been published previously. The court referred to Article 6(2) Sentence 1 German Copyright Act, which stipulates that “… a work shall be deemed published if, with the consent of the copyright owner, copies of the work have been produced in sufficient quantity and have been publicly offered for sale or put into circulation. ” As such, a work is deemed published, when number of copies published is sufficient to allow the interest public to access the work. In the light of these provisions the court concluded that the opera ‘Motezuma’ had already been ‘published’ in 1733. Expert witness statements by renowned musicologists had further revealed the following historical facts: musical works which had been commissioned by Venetian opera house, such as the opera in question, were usually only staged for one season at the respective opera house. In addition, one copy of the musical score was usually deposited at the respective opera house to allow interested parties, such as foreign kings, to take copies of the music. The Federal judges acknowledged that it could not be proven with complete certainty whether this had been the case with ‘Motezuma’. However the court took the view that the claimant had not been able to submit any evidence of different events and, as such, there was a high probability that the work had been published in the sense of Article 6(2) Sentence 1 German Copyright Act, when the music sheets had been handed to the participants of the premiere in 1733 and when a copy of the score had been deposited at the opera house Teatro St Angelo in Venice in 1733. The judges decided that the Venetian opera audience and other interested parties had the chance to access the score and make copies of it in 1733. In the light of the above, the court dismissed the claim.