Friday 15 November 2013

Copyright - No higher level of originality for applied arts

According to the former case-law in Germany, copyright protection of works of applied arts had been considered to be available only for works with a level of originality clearly above an average level of creativity. The reason was that an essentially similar protection by registered designs was available for works with a level of originality above an average level of creativity such that the additional and longer-lasting copyright protection appeared to be justified only if the level of creativity substantially exceeds the level required for design registration.

This case-law has now been overruled in the decision "Geburtstagszug" I ZR 143/12 . The Ist Senate argues that the above reasons are no longer tenable since the law on registered designs has been reformed in 2004. Since then, the close relationship between copyright protection and design protection does no longer exist and originally is no longer required at all for a registered design. It is sufficient if the design has a different overall impression.

As a consequence, it is no longer allowable to impose conditions on the copyright protection of works of applied arts other than those imposed on non-applied works of fine arts, literature or music.
Rather, it is sufficient to reach a level of creativity justifying that the relevant public may speak of an "artistic" achievement (k√ľnstlerische Leistung). The relevant public is defined as a public with reasonable susceptibility to arts being familiar contemplations of arts.

This decision is a little revolution in the design protection in Germany for product or furniture designers, architects or the fashion industry.

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