02-01-2014Article

Newsletter IP, Media & Technology February 2014

Protection for Minimal Creativity now also Applies to Works of Applied Art

Headnote of the Newsletter editorial office: In principle, no higher requirements are to be imposed for copyright protection for works of applied art than for works of pure art.

Note

Up to now, case law made a differentiation between the requirements that had to be met by a work of pure art and a work of applied art in order to be protected by copyright. The requirements for the level of creativity for pure art to be protected by copyright have always been relatively low (protection for minimal creativity, so-called “Kleine Münze” – literally: “Small Change”). For works of applied art, on the other hand (which play by far the greater role in economic life), up to now, German case law has only granted copyright protection on condition that the work “significantly exceeds the average level of creativity”. The significant grounds given for this were that otherwise there would be contradictions with the law on registered designs.

In its recent decision of November 13, 2013, the Federal Court of Justice expressly gives up this precedent. The previous comparison with the law on registered designs could not be maintained after legislators created an independent intellectual property right by means of the reform of the law on registered designs in 2004, which dissolved most of the previous close references to copyright law. This means that there are no longer grounds for differentiating between applied art and pure art. The underlying legal dispute in the case at issue related to additional compensation claimed by a designer from a product manufacturer after the product that she designed (a toy) turned out to be a major economic success for the manufacturer. Unlike the lower court, the Federal Court of Justice did not set aside these claims as a result of a lack of a copyright-protected work.

Consequences

The change in the legal precedent will have consequences for many different economic sectors. Applied art can be found in the product design of most material economic goods, whether toys (as in the case decided by the Federal Court of Justice), electronic goods, other everyday objects, furniture, decorative or fashion items.

The entire area of graphic design, including web design, mostly falls under the category of applied art; even packaging design for consumer goods is included. In the future, copyright protection will be considered for all of these forms of design, which was not previously the case. This is particularly controversial because copyright is created without there being any necessity or possibility to enter it in a register. Even if the designer has failed to register a design before the launch of a new product, in the future the designer will often be able to rely on copyright as a basis for a claim to prevent product imitations instead of relying on the unregistered community design, which has strict time limits, or on the regulations for complementary protection against imitation under competition law. Conversely, it will happen more frequently than previously that companies have to pay their own employees or external agencies additional compensation for the use of their designer services.

It should also be taken into account that the prerequisites for copyright protection in accordance with the new legal precedent may be lower than they previously were, but they have not been entirely removed. A personal expression of creativity remains necessary. Creations based purely on craft without the minimum level of creativity will still not be covered by copyright law in the future.

Conclusion

On the one hand, the change in legal precedent opens up additional opportunities to attack product imitations and look-alikes, on the other hand, however, it also creates an opportunity for designers to argue in favor of a claim to additional compensation for design services that are economically successful. The new legal precedent is also expected to have consequences on functional works in other creative areas, e.g., functional texts such as usage instructions, advertising material, etc. In the future, copyright issues will more frequently be the subject of legal disputes in these areas than it was previously the case. This will mean that in the medium term the development of concrete criteria for the assessment of the ability of “simple” functional works (i. e. not those that are “significantly exceeding the average level of creativity” in the previous sense) to be protected is to be expected. In the short term, however, this will initially result in increased legal uncertainty. It is a matter of opinion whether the change in this legal precedent is to be welcomed and different companies will assess the matter differently depending on the sectors they are active in. In any case, the new legal precedent of the German Federal Court of Justice is in line with the opinion of the European Court of Justice expressed back in 2009 in the Infopaq decision. This opinion stated that a high standard of protection must apply also to functional works and therefore, for example, even relatively short individual sentences or even parts of a sentence within a text can be protected by copyright law.

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