Creative work

A work is protected or protectable a creation for the purposes of copyright. The central international copyright treaties, the Revised Berne Convention, requires the concept and defined only plant species. " The examination of each case, what is to be regarded as a work " is determined " by the law of protection country. " The TRIPS Agreement and the Universal Copyright Convention not contain their own definitions, but refer to the Berne Convention.

Legal situation in Germany

Works referred to in § 1 and § 2 of the Copyright Act ( Copyright Act) are personal intellectual creations in the fields of literature, science and art. In a non-exhaustive list of the Copyright Act be mentioned as " protected works" in § 2 paragraph 1:

• Language works
• Data processing, computer programs
• Musical works
• Pantomimic works, including works of art of dance
• Works of visual arts including works of architecture and applied art
• Photographic works
• Film works
• Illustrations of a scientific and technical nature

But whichever is the definition in § 2 paragraph 2 of the Copyright Act, according to which works are only personal intellectual creations in the sense of the law. Prerequisite for this is the individuality of creation, for which the level of creativity has prevailed as a quantitative measure of individuality.

"From the other products, the copyrighted work differs in that represents something new and special, up from acquaintances to Distinctive and gives the individual human spirit expressed in this way. Characteristic features of the work are thus his mental content, its form of expression, and his individuality. Random works are no works in this sense, since they are not influenced by the individual mind. Managed every single work as such, but not the plant genus to which it belongs. "

Work character

In the German copyright law, the question of when a work is present, a central subject of legal discussion and case law on copyright dar. In the most extensive commentary on the German Copyright Act ( Copyright Act ) is dedicated to Ulrich Loewe home to the interpretation of § 2 of the Copyright Act. Of these, the first five pages of a literature collection in the small print.

Requirements for protection

After Loewe home there are four elements or requirements for protection of the work concept:

• There must be a personal creation of the author.
• You must have a spiritual content.
• You must have a perceivable form design.
• It must come the individuality of the author expressed in it.

The individual plant species (Article 2 § 1 of the Copyright Act ), the creation height will be set differently. This applies mainly to works of applied art ( utensils, craft items ), for the coming of the design protection under the copyright protection into account ( see below). Even within individual plant species, the heading of the level of creativity in the case law is controversial or inconsistent. While about journalistic texts generally apply to very brief messages as protected, the Bundesgerichtshof ( BGH) has applied a higher level of protection lower limit with a lawyer pleading, as he then assigned it to the scientific field.

No consideration of the expense

As irrelevant to the copyright protection of the effort and cost with which a service has been rendered valid. The purely artisanal performance that anyone would bring with average skills as well materialize like they are based on anerkennenswertem diligence and solid skills lie outside the protection ability emphasizes the German courts ( as the Berlin Regional Court in a decision to videotex graphics). In a recent decision of the Higher Regional Court of Hamburg Logos (see also below ) is also noted, it did not matter whether the production of the logos of individual picture elements ( " pixel by pixel " ) may have been time consuming. Germany in order for the sweat- of-the -brow argument does not apply.

The pure craft or routine performance and thus the mass of the everyday saith the Federal Court from the individuality. On the other hand, applies the protection of so-called simple coin, that of works that have a minimum of authorship.

Demarcation on the free public domain

" When I write the numbers 1, 2, 3, 4, 5 on a sheet of paper, which can be copyrighted? " Asked in March 2006, the London Judge Peter Smith in sensational plagiarism case against the Da Vinci Code author Dan Brown. Rayner James, the lawyer for the plaintiffs Michael Baigent and Richard Leigh, who the bestselling author idea robbery accused replied: "I would say doubtful, but possible ".

Especially with extremely lucrative, successful international works of suspicion is often expressed, the copyright holder had modeled on the intellectual property of others. On the occasion of the allegations against the title No No Never nominated for the Euro Vision Song Contest 2006 for Germany country band Texas Lightning NDR entertainment Minister Jan Schulte- Kellinghaus said: " Such allegations there almost every year in every country ."

In copyright comments to German law, the common good is often in the discussion of outdoor use (§ 24 German Copyright Act) addressed. Ulrich Loewe Home writes in the commentary of Schricker: To freely usable [ ... ] commons initially include actual facts and events, everything is predetermined by nature or history. This includes the entire physical environment of man as countries and landscapes, flora, fauna, natural phenomena, etc., historical persons and events [ ... ], current events and news actual content [ ... ], natural laws and data.

For published in the press and radio miscellaneous news actual content and daily news is § 49 of the Copyright Act specifically states that their recovery is copyright permitted.

Facts and scientific evidence are never protected, only to the extent achieved its concrete linguistic representation, this level of creation. As an example, a quote was given of a CV:

As Feodor - Lynen fellow of the Alexander von Humboldt Foundation, he was then a postdoctoral fellow at the University of Michigan, Ann Arbor, where he studied with Prof. Dr. JW Allen many-body effects in the electronic structure of metallic materials using synchrotron radiation.

Even if one assumes that the whole resume is copyrighted, you can assume this one sentence without hesitation verbatim, as an infringement of copyright occurs only when using creative work components into consideration. The quoted sentence contains nothing but facts in a conceivable undemanding linguistic form. Since the whole CV may be regarded at best as a work of small coin, it is not necessary to rewrite it, because the lower the level of creativity, the less is the scope of protection.

From the perspective of free projects that require a rich public domain or a digital commons, it is desirable that the original authorship is particularly high, so as much as possible is part of the freely usable public property.

Further requirements

Plant parts enjoy self- protection, if they can be viewed on its own as an individual intellectual creations. Derivative works (English derivative work ) are new creations based on a previous copyrighted work, such as derivatives in software development.

Even if the threshold of originality is not reached, a protection may occur especially in light images from related rights give the related rights. If any of the copyright rights is given, for example in public domain works or services below the level of creativity but only comes in the commercial sector nor protection from power transfer from Unfair competition into consideration.

Legal situation in Austria

The Federal Act on Copyright in Works of Literature and Art and on Related Rights, shortly copyright law ( Copyright Act ) in § 1 the definition of copyright and in § § 2-9 the listings of protected plant species. The Supreme Court has its jurisprudence changed since the late 1980s and since then has been no increased claims more. It is sufficient that a work can be identified objectively as art and differs sufficiently from other works.

Definition in Switzerland

Here are according to § 2 para 1 URG works such " intellectual creations of literature and art, regardless of their merit or purpose " that have "individual Chrakter ".

Legal situation in other countries

• German Copyright
• Copyright (DDR )
• Copyright of the Swiss Confederation
• Copyright (United Arab Emirates)
• Copyright law (United States)
• Copyright law (Singapore )