Tuesday, 3 January 2012

Walking the Tightrope between Copyright and Technical Creations

The Bundesgerichtshof has recently issued a decision named "Seilzirkus" (I ZR 53/10) on the eligibility of utility items for copyright/author's right.

This question usually pops up in the field of furniture - in particular "design classics" by the masters of the Bauhaus era where the 70-years post-mortem term has not yet expired. However, author's rights are recently claimed quite often in more profane cases such as the climbing scaffold for children made up of ropes and clips and a central pillar shown on the right hand side.
Top view of the original climbing scaffold

It is well established case-law that features which are “exclusively due to technical reasons” (allein technisch bedingt) may not be used to establish copyright. The generally accepted reason for this is the desire of the legislator to keep technical subject-matter free to be used once the term of the technical protective rights (patents, utility models) has expired. Evidence for this “desire of the legislator” is found in Art. 8 (1) of the Community Design Regulation and Art. 7 (1) e) ii) of the Community Trademkark Regulation and in their counterparts in the national laws.

However, it is fairly difficult to distinguish the purely technical features from those which are (in addition to their technical implications) “artistically designed". Imagine a chair with four rectangular legs. The provision of the legs has obvious technical reasons as well as the rectangular profile, which facilitates the manufacturing. But are these reasons exclusive reasons or are there other reasons (e.g. aesthetical) to use four legs rather than three and to use a rectangular profile rather than a round one.
Allegedly infringing climbing scaffold

The Bundesgerichtshof now clarifies that
 a creation does not enjoy copyright protection if it consists of features which are freely exchangeable or selectable only and if no artistic achievement is recognizable. Exploiting the usual design options in craftsmanship and construction or exchanging a technical feature with another does not lead to an original (eigenschöpferisch) work of art.

Finally, the Bundesgerichtshof shifts the burden of clearly and precisely pointing out in what artistic aspects the creation extends beyond the shape as determined by the function to the holder of the copyright (Headnote II). The latter point will be of high practical relevance because it forecloses the right owner from hiding behind a flowery adulation of the work of art but rather forces him to point to the essential features from the onset.

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