Threshold of originality

The level of creation (also: design height, plant height ) is a criterion that demarcates the copyright copyrighted works of such services which are not under copyright protection, especially those who are thus in the public domain. The need for such a definition in each jurisdiction based on the fact that the central international copyright treaties, the Revised Berne Convention, which requires the term work and only defining plant species. " The examination of each case, what is to be regarded as a work " is determined " by the law of protection country ", ie the jurisdiction in which a violation of the law should be enforced.

In many jurisdictions, this threshold will be taken under the terms individuality or originality. For the German Copyright coined Eugen Ulmer 1959, the special concept of the design height in accordance with the established level of invention in patent law and, at the suggestion of Else Meissner. His concept was for the applied arts and worked out a special distinction between copyright and design protection. On this basis the Court has transferred the concept to all areas of copyright and set the threshold depending on the type of work.

On 13 November 2013, the Bundesgerichtshof decided to no longer want to hold on to its case-law and in the future adopt a uniform threshold for all plant species.

Today, the design or creation height " an integral part " of the copyright debate, they determined " the lower limit of copyright protection, " " as a quantitative element of individuality ."

• 2.1 individuality
• 2.2 Creation amount of different plant species 2.2.1 works of language non-literary kind
• 2.2.2 Technical and scientific representations
• 2.2.3 Applied Arts
• 2.2.4 Special Cases

• 3.1 Austria
• 3.2 Switzerland
• 3.3 UK, Canada and USA

Spirit historical background

The central ratings of copyright to be essentially attributed two different reasons in different legal traditions:

Legal nature concept of property

Rights to published works were first introduced by privileges of the country in the Lord, from the 16th century recognized the printer and publisher by their guilds each other rights in and tried thus protecting them from reprinting the competition. In the 18th century the notion of intellectual property established. Works are products of intellectual work according to her how things (usually ) physical work products are. If you look like one of the older doctrine of natural law ( very influential in the U.S. was particularly John Locke ) the basic protection of property is that property is a product of labor, it is natural to demand equality of treatment of mental and manual labor ( " Intellectual Property "). This traditional common law position is with the words sweat of the brow ( " sweat of the brow" ) paraphrased. According to her, is hard work, so a considerable effort, basis of copyright protection, creativity is not required. Consequently, the Anglo-Saxon copyright refers to the commercial exploitation rights of a work, while the continental European copyright law closely follows on the personal position of the author.

In German-speaking Johann Stephan Putter put theory before 1774, after which the intellectual property has distinct features and therefore not authorized by the nature of things, the purchase of a book for its emphasis. However, he could not prevail.

Moral rights of the author

End of the 18th century Fichte proof of the illegality of Books reprint (1793) developed following Immanuel Kant From the illegitimacy of Books reprint ( 1785), and Johann Gottlieb considers that fall in intellectual works the material object book and the embodied content work apart. This goes beyond the mere reproduction right view fitted well with their concept of creation in the aesthetic genius of the late 18th century; 1778 was Johann Gottfried Herder consider each book as an impression of a living human soul. Thus the theory of copyright originated as " protection of personal interests of the author ". Georg Wilhelm Friedrich Hegel and Arthur Schopenhauer in the 19th century contributed to the development of an intellectual property of the author. The various strands of theory led to Philipp Allfeld to be used today in continental Europe monistic theory together, after a single copyright both in property terms, such as moral rights aspects " inextricably intertwined " are.

Since 1936, the Austrian Supreme Court a philosophically tinged default reasoning to the effect that the product of the human mind is then an original intellectual creation, if it is the result of creative mental activity, served the his peculiarity that distinguishes it from other works, from the personality of its has experienced Creator; this personality must come as expressed in it that it the stamp of uniqueness and belonging impresses the work to its creator, so a flowing from the innermost nature of intellectual creativity shaping present (1990).

The level of creativity in the German Copyright

A work within the meaning of § 2 of the Law on Copyright and Related Rights ( Copyright Act) has a concrete, " perceivable form design " have to be so already concretized so far about an idea out that it is imperceptible to human senses, and it must by itself § 2 section 2 of the Copyright Act, " personal intellectual creation " be a. This criterion excludes the one hand, random origination, found objects and animal -produced. And it requires a creator attributable individuality of the work.

Individuality

This individuality is not related to the person that is attributable to the work, but whether the creation bears individual traits.

Particularly evident the need for individuality derived from another plant new plants. The distinction between an editing according to § 23 of the Copyright Act, which may be published only with the consent of the copyright holder to the template, and the free use pursuant to § 24 of the Copyright Act, which does not violate any rights of the original, is in the " fading of individual traits " over the original the new plant. From this it can be seen that the requirements of German law of individuality and creation height must not be too low, because since both template as new work independently must be works, a margin of individuality would be with only minor requirements difficult to see which could fade. On the other hand, is recognized in the German case law on copyright has always been that no undue obstacles for copyright protection may be installed. Also in 1921 the so-called Small coin of copyright is protected.

No meaning for the character of works of creation and thus have copyright protection effort and cost to produce them in Germany. 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 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.

Level of creation of different plant species

The courts have to assess the individuality developed a concept that targets the required level of creativity in the individual plant species of § 2 section 1 of the Copyright Act as well as various applications of plant species vary. No problems are the requirements for works of art, music and literary works. Here each is already the little coin as protected. On photographic works only low requirements since the EEC Directive on the protection of copyright of 1993 and its implementation in the Copyright Act 1995 also provided.

Specific criteria and thus to a much higher threshold of originality lay in the jurisdiction of language works that have not literary character, technical and scientific illustrations and applied art.

Language works of non- literary kind

Based on a decision on an owner's manual of the Federal Court has developed the criteria by which texts are to be assessed, which are " not as pure literary works " to look at. He gets here increased demands on the protective lower limit: Average, the " mechanical part, everyday and banal " should not be protected. Rather, the threshold of originality is to be achieved only when " significant dwarfing the design activity compared with the average design ". The reasoning focusses in particular that with texts for a wide range of shapes everyone should be available and should not be awarded by the copyright a single author.

Technical-scientific representations

Representations in engineering and science are often strongly determined by norms and customs. Therefore, only a small margin of discretion of the designer in question remains. If this clearance is not exercised, as with technical drawings, the fully geared to standards, copyright protection is not considered. On the other hand, is sufficient because of the limited opportunities even a slight individuality, as they may, for example with explosion drawings already in the displayed object specially adapted three-dimensionality and shadows. In topographic maps, in which the cartographer has only by the requirements of the lifelike cartographic representation of the earth's surface a very narrow room for maneuver by the Federal Court is usually a work is accepted and granted the protection because the selection of imaged elements which generalization created in itself Categories and how to deal with the required by the scale of the map deviations from the real state the leeway to use (for details see rights to geo ). Also, three-dimensional representations, such as medical models or those for science education are considered to be protected if they exceed the pure Craft, banal.

It should be noted that the case law in the field of technical and scientific presentations and the scientific or technical texts protection of the content largely excludes and for copyright protection is regularly only the form and method of collection, classification and arrangement of the material into account. In support will be parked on the public interest in free scientific exchange of ideas and information flow which is more serious than other forms of cultural goods. Moreover, it was in science than in other areas necessary to use foreign thoughts and also scientific and technical documents would be strongly influenced by common symbols, formulas and linguistic expressions that would have available to everyone.

Applied Arts

Of particular importance is the level of creativity is the case of works of applied art, especially in the case of commercial art. Here the case-law developed the argument that the copyright of the "small coin " is replaced here by the possibility of design protection, from which the whole concept of original authorship arose.

The case law developed on this basis a concept of different levels of degree:

• The craftsmanship of an average designer is not protected,
• Design law sets a "not too close " over the average power forward and beyond
• Only if in addition a " significant creative dwarfing " the average activity of a designer is present and on the draft offered by the purpose of a " significant aesthetic surplus" is achieved, attacks the copyright.

In a decision of 26 January 2005 the Federal Constitutional Court ( Bundesverfassungsgericht ) referenced the state of discussion. The comparatively long quote from the - public domain as official work - judgment should give an impression of the arguments of the copyright lawyers:

Starting from the definition of the copyrighted work as a personal intellectual creation (Article 2 § 2 of the Copyright Act ) requires the federal court for the existence of the plant property consistently held a certain level of design height ( cf. graphs of Loewe 's home in: Schricker, copyright, 2nd. edition 1999, § 2 para 32 et seq; Dreyer in: . Dreyer / Kotthoff / Meckel, Copyright, 2004, § 2 para 53 et seq, who speaks of " original authorship ").. For almost all kinds of work he relies on a relatively low limit so that as a rule already ( the so-called Small coin) enjoy works with low design height copyright protection. This applies, inter alia, for works of fine art ( cf. BGH, IIC 1995, p 581 < 582 > - " Thistle ").

The situation is different according to the jurisprudence of the Federal Court, however, in the field of applied art, ie at everyday objects with artistic design ( so Nordemann / Vinck in: Religious / Nordemann, copyright, 9th edition 1998, § 2 para 21; Loewe Home, loc. .. 156 ) and thus the case of works which are intended not only for viewing, but also a utility purpose to serve ( cf. BGH, ibid. including Nordemann / Vinck, op 52; Schack, copyright and copyright contract law, 2nd edition 2001. Rn 202;. Loewe Home, loc 156). . Here, the case law stricter requirements on the design height and demands for work quality, and therefore for the protection of copyright a clear dwarfing the average design ( cf. BGH, supra, and BGHZ 138, 143 < 147 > - " Les Paul Guitar ").

This is accounted for with the possibility of the given here design protection under the Designs Act. Between copyright and design patent law provides the Federal Court not being, but only a difference of degree ( cf. BGH, IIC 1995, p 581 < 582 > - " Thistle ", as well as Loewe Home, loc 157; Eichmann / Falckenstein. , design Law, 2nd edition 1997, General Rn 19, .. . Nirk / Kurtze, design Law, 2nd edition 1997, introduction para 44 et seq.). Since there are already had a taste pattern capable design of the non-protected average design, the mere craft and everyday stand out, is to ask for the copyrightability a still further distance. Copyright protection laws after a higher creative Eigentümlichkeitsgrad ahead than just taste pattern statutory subject matter, the limit should not be set too low ( cf. BGH, supra).

The literature supports this view with the idea that the uniform itself notion of the work of § 2 of the Copyright Act in the applied arts through the design protection in accordance with the Design Act shall be broken as a lex specialis ( Nordemann / Vinck, loc. 21, 52) and the formal requirements of the Design Act - application for registration and payment of registration fees - could be undermined if copyright protection would be for the "little coin " (cf. Dreyer, loc 59. ). Incidentally, it 'll go with works of applied art idea is to prevent that would be monopolized obvious design elements (see Schack, loc. 207).

The constitutional complaint concerned the drawing of a current two-legged human eye (see figure), which the Berlin graphic artist Franz Zauleck had created for the Design Zentrum NRW. Landgericht (LG) and the Higher Regional Court had rejected a protection. The Federal Constitutional Court dismissed the appeal with regard to the registered design legal base in the field of applied arts.

Simple logos are therefore likely to be not protected by copyright ( regardless of the protection as registered designs and trade mark law, which should be given in many cases). This concerns in particular logos that have a typographic design in the form of an inscription, supplemented only by a few simple design element. The case law is the protection of logos cautious and has explicitly denied the protection of the ARD -1.

Whether a fashion creation, in this particular case a draft of the country fashion, is protected with the name Hirsch robe Leipzig district court had to decide in 2001: " In fashion creations therefore not, the mere development of the fashion line and form, or their combination with what is already known. But not only haute couture models, but also already ready-made models can achieve copyright protection, the limits of copyright protection with respect not to screw fashion creations immeasurably "This relativized the court -. , Like other dishes as well - also in the field of applied art, the requisite level of creativity and put on no strict standards. This decision was made but before the Federal Constitutional Court on the date eye, since at least the requirements for proper reasoning to be set higher.

Special cases

While in the pure visual arts (sculpture, painting and graphic arts ), the protection of small coin and thus low requirements are recognized, such as the Suprematism of Kasimir Sewerinowitsch Malevich ( whose works, however, poses problems for the copyright lawyers individual art movements of the modern age, in the practice now in the public domain by the deadline ). The dilemma of copyright lawyers formulated Loewe Home: Protecting the monochrome image or empty sheet does not go so far as to exclude others from making the same pictures or leaves, which consists in the use of the same hue or void, could be prohibited; on the other hand, the artist must the reproduction and distribution of his work, can prevent about through the sale of postcards. Similar problems arise with readymades, in which an artist selects found objects and charges with meaning.

Turning to the works of architecture, ie, the architecture, we find also no traceable to the layman clear criteria. Although the problem of their imaging by third parties through the Freedom of Panorama is largely mitigated for the Exterior of buildings, but again it comes to disputes between builders who want to change copyrighted buildings, but claims the architect or facing of his heirs. Also houses can be art protectable, if and to the extent revealed an artistic legacy in the performance of the architect in them. One of terraced houses, the district court denied the protection Dusseldorf, while the Leipzig district court a toilet at motorway service stations found worthy of protection. In itself, works of architecture from the mass of everyday creativity to stand out, but that courts structures have the property as agreed copyrighted work, is rather rare. This results in an " uncertainty of the law [ ... ], which is acting in works of architecture in arbitrary, no discernible systematic decision following reasons reflects " results.

In music, one can assume that virtually all compositions are protected as " small coin ". Noise, single chords and simple scale exercises, however, are not covered by the protection. In a two-bar melody in the chorus of a pop song meant that the Landgericht München I, they lift not sufficiently in a peculiar way of generally familiar compositional means and principles or from a previously known form of treasure from and will not marked by the signature of its creator.

Protection below the level of creativity

Even if the threshold of originality is not reached, a protection of related rights, the Performance Rights may result. This concerns in particular, photographs that are not photographic works. For it is true according to § 72 German Copyright Act only a shortened term of protection. All photographs - except reproduction photographs ( the copyright only represent a duplication of the original, and no own work ) - and are therefore copyrighted or at least protected by an intellectual property right. The same applies to music: The Federal Court ruled that sampling hurt even the smallest " Tonfetzen " the intellectual property right of the phonogram producer.

Outside, next to the copyright and related rights are other forms of intellectual property law. In particular, a design may be copyright unfold similar claims. The figure of a protected under the Designs Act Intercity Express for commercial purposes was considered improper use by the Federal Court and also not allowed as a quotation. The Olympic rings and other attributes of the Olympic Games are in many countries in the world with a special legal protection, in Germany the law to protect the Olympic emblem and the Olympic designations.

If none of intellectual property rights is given, for example in public domain works or services below the level of creation to which no other protection law is applicable is - but only in the commercial sector - another protection from power transfer from unfair competition into consideration. For this purpose requires that the performance of acquired has a "competitive peculiarity" and there are special circumstances that make the acquisition unfair. Examples would be the unauthorized use of templates, secret treachery, bribery, exploitation of a foreign reputation or the origin of deception.

Critique of the different requirements for the level of creativity

The different heading of the required level of creativity in different plant species and particularly in the applied arts through case law has encountered in the legal literature in a variety of criticism. The requirement of a uniform character of works and thus uniform requirements for individuality will be charged from the uniform definition of a work of copyright. Also from the European legal regulation, as can be seen in the term of protection Directive, the Database Directive 96/9/EC and the copyright directive, can be close to a tendency to a single low protection threshold.

Against the argument of the displacement of copyright by design law is argued with arguments of the legal doctrine that the legislature create independent intellectual property right of the recasting of the Design Act of 2003 " [ wanted ], which is not only a derivative of an existing privacy laws. In this respect, [ should ] through the implementation of the Directive, the close relation of the design right on Copyright eliminated [ be ]. " From this it is concluded that the two rights would stand side by side and there would be no competition. Copyrighted work and tasteful design law power " differ [ ... ] not gradually, but qualitatively". That conclusion is contrary to that jurisdiction supreme court has maintained its practice in recent case decisions and not picked up on this aspect of the legislative intent. In the literature, the requirement for a conversion of the case law will continue to be charged.

Outside the applied arts is argued that the individuality " are request to the character of works for himself and without the additional criterion of the design height and draw the distinction between the everyday, routine exclusively produced and the minimum of personal embossing afford " as should. The design height could then be restricted to the field from which they originated.

However, it is also problematized in applied art that 97.5 % of all design services remained unprotected, while all benefits would be protected in the event of photography. This does not correspond with the aims of the Copyright Law and the tendency of the EU standard-setting.

But after 1993 continue to maintain the Copyright Directive and its amendment, the requirement of individuality for copyright protection in the legal literature, a new standard reference point for all kinds of work being sought. It is proposed to build on the scope of each type of work: " The larger the scope for the respective drive fails, the sooner and copyright protection is in the affirmative. "

In contrast, there is a counter-tendency in parts of the literature that wants to remove the little coin from copyright completely and instead assume the competition law or a newly created general ancillary rights. The justification provided is that not a law should be equally responsible for world literature and art on the one hand and address books and other texts and use the latter in particular should not enjoy the full protection of 70 years after the author's death.

Appropriate regulations outside Germany

Although the concept of originality is predominantly used in Germany, the remarks apply to the work and character to the threshold of individuality between protected as a work creations and not covered by the copyright of services mainly to other countries. The right of Austria and Switzerland, here is the German copyright law broadly similar.

Austria

Also in Austria the original authorship is used as a lower bound of copyrighted works. However, the requirements are stated on all kinds of work be harmonized. The Supreme Court described the principle when he said to protect a website 2001:

Protection requirement is that the performance is individually strange: you must be different from the everyday, the commonplace, usually withdraw the originated. When working professionals have personal traits - particularly through the visual design and the mental processing - come to bear ( ecolex 1995 910 MR = 1996, 107 = ÖBl 1996 56 = WBl 1995, 514 - arrow display further references).

A commercial art can therefore only be copyrighted if they individually and original in this sense (MR 1996, 241 [ Walter ] = ÖBl 1996 292 - Here lives further references). This also applies to the layout of a site: its copyright protection assumes that it is an individual creation.

Not protected is a purely artisanal, routine performance that is in line with the everyday and the ordinary, (for example) is limited to the standard layouts of creating software and no individual design elements because they are used.

Originally differentiated the Austrian case the standard for the protection necessary plant height as in Germany after use purpose, but the OHG rejected this case law in the course of the 1980s and became independent in the early 1990s, applies a uniform requirement for the plant height from the intended use

" What purpose does the work, is of no importance; also a mere purpose of use is not harmful. Decisive is only the nature of the work ( ÖBl 1997 38 - Bookends ). The fact that the " works of the fine arts" in the sense of § 3 para 1 of the Copyright Act in principle can also fall those whose means of expression the graphics - even if it is only the so-called " commercial art " - is, is of doctrine and jurisprudence unanimously affirmed ( ÖBl 1992, 181 - Kalians wyvern, RIS Justice RS0076187; Kucsko, Intellectual Property 1108). At their factory character are higher requirements to make, as to the other plant species "

As requirements for copyright protection is now provided that a work can be identified objectively as art and differs sufficiently from other works.

Switzerland

In Switzerland, there is a threshold that must exceed works for copyright protection. The federal law on copyright and related rights defined in Article 2Vorlage: Art / Maintenance / ch- search.:

"Works are, regardless of their merit or purpose, intellectual creations of literature and art that have individual character. "

Thus, the lower limit for all plant species is consistently based. However, the impact of falling below the threshold in Switzerland are therefore of greater importance than in Germany or Austria, because there are in Switzerland, no performance rights for scientific publications, posthumous works, photographs below the threshold of photo work or databases. A performance from these areas, which is not recognized as work, so is immediately public domain.

The Federal Court has even a photograph attested in two decisions of 2003/2004 the necessary individuality, denied in the other. In one case, a photographer tried at a concert in a variety of images capture the special atmosphere and the appearance of the artist and then chose one of the pictures as particularly successful, in others the right to a photo was in dispute, which arose at a press conference, when a person's present photographers presented for an image. An analysis of the two decisions come to the conclusion that the individuality and therefore copyright protection is given only when a creative will of the copyright in the work is recognizable. Pure documentation of the encountered for information without the claim of an individual design does not meet this requirement.

UK, Canada and USA

In the UK and Canada, the prevailing opinion of the doctrine of sweat of the brow goes out, which gives a copyright already by the mere use of time and effort when creating a work. With a quote by Judge J. Peterson from the decision of University of London Press v. University Tutorial Press in 1916 states: "What is it worth to be copied, [ ... ] it is also worth to be protected. " This case law goes back to the decision Walter v. Lane from 1900, in which a journalist was awarded the copyright to his literal transcripts of speeches of a politician. Even after the Copyright Act of 1911 for the first time defined as originality requirement, the courts did not change their interpretation, the decision of 1900 is quoted regularly.

The Canadian case law made ​​by this change. Originally in British tradition in 1998 in Tele -Direct, the Federal Court of Appeal decided in accordance with the reasoning of the United States in Feist and denied copyright protection of a phone book. However, wrote in 2002, the same court in CCH Canadian v. Law Sociey of Upper Canada that

"The Crucial requirement for a finding of originality is did the work be more than a mere copy"

" Is to determine the critical requirement for originality, that the work is more than a mere copy "

And returned to the British tradition. This is true since as an established principle.

In the laws of the United States is often called by the lack of originality ( lack of originality ), which excludes a copyright. The notion that a certain degree of originality ( modicum of originality ) is necessary, the Supreme Court in 1991, v. Rural Telephone Service Co., Inc. ( 499 U.S. 340) developed in his decision Feist Publications, Inc., and thus the previous application of the sweat of the brow - thesis rejected. The court argued with the Constitution of the United States, that the copyright 8 of the Constitution " to promote the progress of science and useful arts " serve, and therefore ideas and information would not be protected according to Article I, Section. The decision is regarded in the literature as a milestone in the interpretation of the concept of originality. It follows that the identification of Authors, that the factory creativity is applied. The compilation of information without independent contribution - as in the case decided in a phone book - therefore is not protected by copyright.