Double creation

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In copyright law, one speaks of a double creation (also: parallel creation ) when two authors create works independently of one another that are either completely identical or at least share essential characteristics that justify protection. The essential feature of double creation is that the author of the newer work has no knowledge - neither consciously nor unconsciously - of the pre-existing work when it is created. Double creations are considered rare.

According to German and Austrian law, there is no copyright infringement in the case of double creation, and the author of the double creation also enjoys his own copyright protection. Other legal systems may differ; In some cases, the factual impossibility or at least the extreme improbability of double creation is viewed as a necessary prerequisite for copyright protection. This also applies to Switzerland, for example, where the question of independent protection of double creations is extremely controversial.

Demarcation

The double creation is to be distinguished from the phenomenon of cryptomnesia . In cryptomnesia, something appears to someone as his own creation, but which he actually had previously in his subconscious. In other words, he takes on someone else's work without being aware of it, while the double creator actually did not even know the pre-existing work. A well-known example of the distinction between these two cases is the song My Sweet Lord by George Harrison , which shows considerable similarity to the older title He's so Fine by Ronald Mack (played by the group The Chiffons ). The New York District Court involved in the case came to the conclusion that Harrison might have encountered a sequence of notes in his composing activity that "his subconscious knew had already worked in a song that his conscious mind could not remember" , and affirmed the existence of a copyright infringement.

From plagiarism - at least according to the prevailing understanding in the German-speaking area - the double creation differs in the subjective fact: A plagiarism presupposes that the agent (plagiarist) can be personally accused of his copying; in the case of a double creation, this is missing because the double creator - by definition - lacks a sense of acceptance. (In some cases, notwithstanding this, unconscious takeovers are also subordinated to the term plagiarism. In this case, the difference is that - see below - there is no causal relationship between earlier and more recent work in double creation.)

Cryptomnesia and plagiarism therefore have in common that knowledge of the older work was the cause of the creation of the younger in both cases. This is not the case with double creation. Therefore, it is not an adaptation or any other form of use (such as a so-called free use ) of the pre-existing work.

Legal situation in Germany

Recognition of the legal figure

For German copyright law , it is generally assumed that double creation triggers new copyright protection. The result is that both authors - the one of the older and the one of the newer work - enjoy copyright protection independently of one another and both can take action against unauthorized use by third parties under their own rights. In copyright law (unlike in patent and trademark law, for example ) there is no priority principle . However, from the coexistence of the property rights it also follows that the two authors cannot take action against the use by the other; in other words, the double creation is not a copyright infringement. In addition, both authors can grant third parties the right to use their work without infringing the copyright of the other.

The underlying concept of German copyright law describes parts of the copyright literature as “subjective novelty”. What is meant is that a necessary condition for copyright protection is that the creation represents something "new" from the point of view of the author involved ; otherwise there would be a lack of individual creation, since what one already knows from the work of third parties cannot be an expression of one's own individual spirit. This subjective novelty is differentiated from the "objective novelty", which is irrelevant for the issue of copyright protection.

frequency

The possibility or probability of a double creation is judged differently depending on the type and complexity of the work. This is most likely to be expected in the area of small coins , where the boundary between the ability to be protected and defenseless lies and technical constraints or common and obvious design methods dictate a certain form.

Overall, there is agreement that double creations are rare, whereby a - quite extensive - formulation by Gerhard Schricker is often used, according to which the accidental double creation in copyright practice is a "white raven", "which one can hardly ever get hold of". On the other hand, it is also emphasized that correspondence of products is ruled out at human discretion , "designs lying in the area of ​​similarity [...] are certainly possible as a double creation, especially when the scope for individual creativity is limited and individuality is only revealed to a modest extent".

Evidence

In view of the rarity of double creations, the case law considers it justified to protect the author from the plagiarist's protective claim that he only created an accidental double creation by facilitating evidence. In view of the diversity of individual creative possibilities in the artistic field, in the opinion of the Federal Court of Justice, a broad agreement of works that are based on independent creation appears “almost impossible in human experience”. Therefore, when there are “extensive matches”, prima facie evidence regularly disputes the existence of double creation. The prima facie evidence is to be regarded as dispelled if, as the Federal Court of Justice has stated in connection with an alleged melody extraction, “according to the circumstances, a different course of events suggests itself, according to which the correspondence can also be found in other ways than by resorting to the creator of the new melody let the older ones explain ”. There must be “weighty reasons” for the assumption of an accidental double creation. The prima facie evidence is refuted if the author of the later work successfully proves that he had no knowledge of the earlier work.

Examples

Examples from case law in which a double creation was recognized can be found predominantly in the field of musical works, especially melodies . Exemplary:

  • The (German) Federal Court of Justice ruled in 1970 that the melody of the refrain of the midnight tango "Tanze mit mir in den Morgen" composed by Karl Götz, despite considerable structural and melodic similarities with the main movement of the Magdalen aria of the earlier opera Der Evangelimann by Wilhelm Kienzl, did not violate the Copyright, since double creation cannot be ruled out.
  • In the song Schenken uns Dummheit, No Level (2010), the band Frei.Wild uses a musical arrangement including a riff, which is partly identical to a section of the piece Order German Reich (2006) by the right-wing rock band Stahlgewitter , which Frei.Wild sued for omission and damages. The Hamburg Regional Court did not consider it to be proven that there was not a double creation; the similar part is only very short and musically undemanding and predictable. Even the possible positioning of both bands in the right spectrum is not enough to prove that Frei.Wild knew the older piece .
  • The Hanseatic Higher Regional Court saw the proof of the first appearance against a double creation in a piece of music that shows copyright-related matches with a pre-existing piece, because “a course of events is obvious, according to which the matches are also found in other ways than by resorting to the creator of the new one Let the work explain to the older work, namely by the fact that the complaint pattern itself is obvious, can be easily reached with mere finger exercises and, moreover, it is highly likely that it corresponds to previously known parts of the work from the field of rock or pop music. "

The relevance of the double creation is not limited to the field of musical works. For a motif in a so-called wall painting on the Berlin Wall , for example, the Berlin Court of Appeal decided in 2000 that although there were similarities to a painting by another artist, due to its obvious design it was predominantly likely that the author of the more recent work independently this has come; thereby the prima facie evidence was refuted.

Legal situation in Austria

The figure of double creation is also recognized in Austrian copyright law. According to prevailing opinion and meanwhile also supreme court jurisprudence, in the case of double creation, as in Germany, independent protection arises; the author of the older and the author of the newer work can also claim their copyright alongside one another and independently of one another. The Supreme Court (OGH) did not follow a suggestion in the literature to apply the co-copyright rules of Section 11 of the Austrian Copyright Act instead . The view of the Supreme Court and the prevailing doctrine has been countered in particular that, assuming a co-existing protection of both creations, neither of the authors would be able to grant exclusive rights of use because the right of use holder could not prevent the other "double creator" (or a right-of-use holder appointed by them) also uses the work.

If there are copyright-relevant correspondences between two works, then the priority of one of the works causes "with regard to the typical course of events a prima facie proof that the later creation is a loan".

Double creations are very rare; Kucsko even speaks of the “phantom of double creation”. They will mainly occur where the copyright protection requirements are low. Sometimes it is pointed out that double creations are conceivable against this background, especially in the area of ​​everyday photographs.

Legal situation in Switzerland

Swiss legal doctrine shows itself to be far less unanimous than German and Austrian on the question of independent protection of double creations. Some commentators are in favor, others against. In particular, it is argued that the possibility of parallel creation excludes copyright protection, because if one correctly searches for the required individuality in the work itself, there can be no double creations - what two authors create independently of one another in agreement is not individual either. The Zurich Higher Court agreed to this in its Love decision from 2009. The dogmatic debate often runs along questions of interpretation of the “doctrine of statistical uniqueness” according to Max Kummer, which is popular in Swiss literature. Authors who regard the possibility of double creation as a protection-disqualifying interpretation, in some cases strictly, mean that there is naturally a lack of “uniqueness” if other authors could produce the same thing. It is countered that a purely “statistical” uniqueness leaves room for two authors to create the same works in individual cases. Another argument against the recognition of a protection of double creation is of a legal and political nature: The recognition of double creation "punishes the educated and rewards the ignorant", since the ignorant have it easier when focusing on the subjective novelty, original copyright to acquire. Hilty also thinks that the investigation into whether an author had knowledge of the pre-existing work at the time the work was created represents "legal theoretical madness", since it is often extremely difficult to research the objective circumstances.

Both positions at least agree that a double creation does not constitute a copyright infringement on the pre-existing work. As an example of areas in which double creations can occur, shorter messages are mentioned in the literature. With regard to the burden of proof, it is argued that given the rarity of double creation, a presumption speaks against its existence; the author of the second work had to refute this presumption by proving that he was not familiar with the pre-existing work. The sweeping assertion that we have never seen the pre-existing work before turns out to be too unsubstantiated.

literature

  • Stefan K. Braun: The mistake with the double creation . In: The expert . tape 42 , no. 3 , 2015, p. 55-57 .
  • Stefan Ernst: Cryptomnesia as a defense in plagiarism processes . In: Manfred Rehbinder (Ed.): The psychological dimension of copyright . Nomos, Baden-Baden 2003, ISBN 3-8329-0312-7 , p. 101-111 .
  • Roman Heidinger: The demarcation between dependent processing and free re-creation: An investigation using the example of reproduced photographs . In: Media and Law . tape 29 , no. 3 , 2011, p. 132-142 . [Austria]
  • Gunnar Karnell: The double creation as a copyright problem . In: François Dessemontet (ed.): Mélanges Joseph Voyame: Recueil de travaux offerts à M. Joseph Voyame professeur honoraire à l'Université de Lausanne . Diffusion Payot, Lausanne 1989, p. 149-157 .
  • Sandro Macciacchini: The double creation that can be protected by copyright: A popular mistake: Comment on Gregor Wild, From statistical uniqueness to the sociological concept of work, sic! 1/2004, 61 ff. In: Journal for Intellectual Property, Information and Competition Law (sic!) . tape 8 , no. 4 , 2004, p. 351-355 .
  • Sandro Macciacchini: Error: The double creation can be protected by copyright . In: Mathis Berger, Sandro Macciacchini (Ed.): Popular errors in copyright . Schulthess, Zurich, Basel, Geneva 2008, ISBN 978-3-7255-5577-2 , pp. 25-36 .
  • Ivan Mijatovic: Creativity as a prerequisite for the copyright protection of intellectual products . Stämpfli, Bern 2006. [On the double creation: pp. 115-134]
  • Per Jonas Nordell: The double creation criterion in Swedish law - theory and practice . In: Intellectual Property and Copyright Law, International Section . tape 46 , no. 2 , 1997, p. 110-116 . [Sweden]

Individual evidence

  1. ↑ See for example Walter, Austrian Copyright , 2008, Rn. 135; Rehbinder / Viganò, URG , 3rd edition 2008, Art. 2 para. 2; OGH July 14, 2009, 4 Ob 9 / 09s ( full text ) = MR 2010, 26, 28 = ÖBl 2010, 75, 78 - Budget Style Hotel .
  2. ↑ Ernst, Cryptomnesia as an objection in plagiarism trials , 2003 , op.cit ., P. 101.
  3. ↑ Macciacchini, mistake: The double creation is protected by copyright , 2008, op. Cit., P. 27; Till Zimmer, The Psychological Dimension of Copyright: Report on the workshop of the same name, organized on March 7, 2003 by the Institute for Copyright and Media Law (Munich) and the European Institute for Forensic Psychology (Zurich) , in: Journal for Copyright and Media Law , Vol. 47, No. 6, 2003, pp. 468-480, here p. 474.
  4. ↑ See, for example, Andrey Kashanin and Elena Dubovitskaya, The design height of works in Russian copyright law , in: Industrial property rights and copyright, International Part , Vol. 62, No. 2, 2013, pp. 113–123, here pp. 115 ff. (which refer to the prevailing opinion on the old Russian copyright law, which has "categorically rejected" a separate protection); Nordell, The Double Creation Criterion in Swedish Law - Theory and Practice , 1997, op. Cit., Pp. 110 ff .; Ulrich Fuchs, The concept of work in Italian and German copyright law: A comparative legal study , Beck, Munich 1996, ISBN 3-406-40996-2 , p. 38 ff. (Prevailing opinion on Italian copyright law wants to deny its own protection to the newer work).
  5. ↑ Ernst, Cryptomnesia as an objection in plagiarism trials , 2003, op. Cit., P. 102; A. Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, §§ 23, 24 marginal numbers. 58, 62.
  6. ↑ Bright Tunes Music Corp. v. Harrisongs Music, Ltd. , 420 F. Supp. 177, 180 (SDNY 1976) ( full text ).
  7. ↑ Mathias Dieth, Musikwerk und Musikplagiat im Deutsche Copyright , Nomos, Baden-Baden 2000, ISBN 3-7890-6932-9 , p. 42; A. Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, §§ 23, 24 marginal numbers. 58 f. See also BGH GRUR 1960, 500, 503 - plagiarism allegation .
  8. ↑ For example in American copyright law. For the terminological uncertainty in this regard, cf. closer Fedor Seifert, Plagiarism (s): reflections on a popular term , in: Ulrich Loewenheim and Thomas Raiser (eds.), Festschrift for Fritz Traub on his 65th birthday , Deutscher Fachverlag, Frankfurt 1994, ISBN 3-87150-451-3 , Pp. 343-366, here in particular pp. 359 ff.
  9. ↑ Bullinger in Wandtke / Bullinger, practical comment on copyright law , 4th edition 2014, § 23 marginal no. 19th
  10. ↑ Bullinger in Wandtke / Bullinger, practical comment on copyright law , 4th edition 2014, § 23 marginal no. 19; OLG Hamburg, judgment of October 11, 2018, Az. 5 U 57/15 = ZUM 2019, 262, 264.
  11. ↑ Bullinger in Wandtke / Bullinger, practical comment on copyright law , 4th edition 2014, § 23 marginal no. 20; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, Appendix §§ 23, 24 marginal no. 9; Haberstumpf in Büscher / Dittmer / Schiwy, industrial property rights, copyright, media law , 3rd edition 2015, § 23 marginal no. 19; A. Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, §§ 23, 24 marginal numbers. 64; Jan H. Franzen and Albrecht G. von Olenhusen, photographic works, photographs and photo imitations. Dependent editing or free use? , in: Archive for Copyright and Media Law (UFITA) , No. 2, 2007, pp. 435–480, here p. 462.
  12. ↑ Bullinger in Wandtke / Bullinger, practical comment on copyright law , 4th edition 2014, § 23 marginal no. 20. See also the comparison of the double creation in the various intellectual property rights in Markus Hoffmann, Multiple Protection of Intellectual Property in the German Legal System , Utz, Munich 2008, ISBN 978-3-8316-0806-5 , p. 82 ff.
  13. ↑ Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, appendix §§ 23, 24 marginal no. 9; Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 23 Rn. 34.
  14. ↑ Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 23 Rn. 34; Marcel Bisges, The Small Mint in Copyright , Nomos, Baden-Baden 2014, ISBN 978-3-8487-1775-0 , p. 147. Bisges points out that the granting of rights here entails a loss of remuneration compared to "individual creation" is, since the monopoly of the author is lifted.
  15. ↑ Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 2 Rn. 64; A. Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, § 2 Rn. 26th
  16. ↑ Instead of many: Loewenheim in Schricker / Loewenheim, Copyright , 5th edition 2017, § 2 Rn. 64, with further evidence. So already BGH, judgment of October 23, 1981, Az. I ZR 62/79 ( full text ) = GRUR 1982, 305, 307 - office furniture range .
  17. ↑ Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, appendix §§ 23, 24 marginal no. 10; Schulze in Dreier / Schulze, Copyright Act, 6th edition. 2018, § 23 marginal no. 29; Ernst, Cryptomnesia as a defense in plagiarism trials , 2003, op. Cit., P. 102; OLG Hamburg, judgment of October 11, 2018, Az. 5 U 57/15 = ZUM 2019, 262, 262; KG, judgment of September 26, 2000, Az. 5 U 4831/00 ( full text ) = ZUM 2001, 503, 505; OLG Frankfurt am Main , judgment of June 30, 2015, Az. 11 U 56/15 ( full text ).
  18. ↑ Gerhard Schricker, comment on BGH, judgment of February 3, 1988, I ZR 142/86 - A little peace, in: Industrial legal protection and copyright , Vol. 90, No. 11, 1988, pp. 815-816, here p 815. See also the other, On the harmonization of copyright in the European Economic Community , in: Jürgen F. Baur, Klaus J. Hopt and KP Mailänder (eds.), Festschrift for Ernst Steindorff on his 70th birthday , De Gruyter, Berlin 1990 , ISBN 3-11-011985-4 , pp. 1437–1453, here p. 1443. Christian Handig, Einfach originalell… must be an idea: The protection of ideas according to the UrhG , in: Austrian sheets for industrial property rights and Copyright , vol. 59, no. 2, 2010, pp. 52–57, here p. 56 (with reference to the fact that “if the requirements for works under copyright law are drastically lowered, the significance [can] increase significantly”).
  19. ↑ KG, judgment of September 26, 2000, Az. 5 U 4831/00 ( full text ) = ZUM 2001, 503, 505.
  20. ↑ BGH, judgment of June 5, 1970, Az. I ZR 44/68 ( full text ) = GRUR 1971, 266, 268 - Magdalenenarie . So already obiter dictum BGH, judgment of May 8, 1968, Az. I ZR 67/65 = BGHZ 50, 340, 350 - Rüschenhaube .
  21. ↑ BGH, judgment of January 24, 1991, Az. I ZR 72/89 ( full text ) = GRUR 1991, 533, 534 - Brown Girl II ; Judgment of June 5, 1970, Az. I ZR 44/68 ( full text ) = GRUR 1971, 266, 268 - Magdalenenarie ; A. Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, §§ 23, 24 marginal numbers. 64.
  22. ↑ BGH, judgment of February 3, 1988, Az. I ZR 142/86 ( full text ) = NJW 1989, 387, 388 = GRUR 1988, 812, 814 - A little peace ; Judgment of February 3, 1988, Az. I ZR 143/86 ( full text ) = NJW 1989, 386, 387 = GRUR 1988, 810, 811 - Fantasy ; Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, Appendix §§ 23, 24 marginal no. 10; A. Nordemann in Fromm / Nordemann, Copyright , 12th edition. 2018, §§ 23, 24 marginal numbers. 64.
  23. ↑ BGH, judgment of February 3, 1988, Az. I ZR 142/86 ( full text ) = NJW 1989, 387, 389 = GRUR 1988, 812, 815 - A little peace .
  24. ↑ Dreyer in Heidelberg Commentary on Copyright , 4th edition 2018, appendix §§ 23, 24 marginal no. 10; OLG Cologne, judgment of March 5, 1999, Az. 6 U 189/97 ( full text ) = GRUR 2000, 43, 44 - Klammerpose .
  25. ↑ BGH, judgment of June 5, 1970, Az. I ZR 44/68 ( full text ) = GRUR 1971, 266, 269 - Magdalenenarie .
  26. ↑ Dirk Fisser, Frei.Wild: Plagiarism lawsuit rejected by neo-Nazi band , in: Neue Osnabrücker Zeitung (Online) , February 27, 2015, accessed on March 20, 2019.
  27. ↑ LG Hamburg, judgment of February 26, 2015, Az. 310 O 315/11 = ZUM 2015, 699, 704 f.
  28. ^ LG Hamburg, judgment of February 26, 2015, Az. 310 O 315/11 = ZUM 2015, 699, 705.
  29. ↑ OLG Hamburg, judgment of October 11, 2018, Az. 5 U 57/15 = ZUM 2019, 262, 264.
  30. ↑ KG, judgment of September 26, 2000, Az. 5 U 4831/00 ( full text ) = ZUM 2001, 503, 505.
  31. ↑ So now OGH September 26, 2017, 4 Ob 156 / 17w ( full text ) = MR 2017, 278, 281 = ÖBl 2018, 75, 78 - alcohol in road traffic . Likewise Kucsko in Kucsko / Handig, copyright , 2nd edition 2017, § 1 marginal no. 38; Controversy in Höhne et al., Copyright for Practice , 2nd edition 2016, p. 59; Marco Genschorek, Appropriation Art: The Art of Appropriation in US and Austrian Law , Facultas, Vienna 2014, ISBN 978-3-7089-1108-3 , p. 42 ff .; Heidinger, The demarcation between dependent processing and free re-creation , 2011, op. Cit., P. 140. On the state of opinion cf. also Ciresa in Ciresa, Austrian copyright law , status: 19th EL 2017, § 1 Rn. 33; Clemens Bernsteiner, The music quote in copyright law: At the same time a contribution to the concept of musical work , Facultas, Vienna 2017, ISBN 978-3-7089-1664-4 , p. 51 f.
  32. ↑ Oliver Peschel, comment on OGH September 26, 2017, 4 Ob 156 / 17w - alcohol in road traffic , in: Medien und Recht , Vol. 35, No. 6, 2017, pp. 281–282, here p. 282. Zum related proposal see Walter, Austrian Copyright , 2008, Rn. 137; ders., Note on Supreme Court August 31, 2010, 4 Ob 51 / 10v - "Salzwelten / Cor montis" , in: Medien und Recht , Vol. 29, No. 2, 2011, pp. 88–89, here p. 89 ; affirmed in the same., Comment on OGH September 26, 2017, 4 Ob 156 / 17w - Alcohol in road traffic , in: Medien und Recht , Vol. 35, No. 6, 2017, pp. 282–284, here p. 284; Probably also controversy in Höhne et al., Copyright for Practice , 2nd ed. 2016, p. 59.
  33. ↑ Michel M. Walter, comment on OGH September 26, 2017, 4 Ob 156 / 17w - alcohol in road traffic , in: Medien und Recht , Vol. 35, No. 6, 2017, pp. 282–284, here p. 284 .
  34. ↑ OGH September 26, 2017, 4 Ob 156 / 17w ( full text ) = MR 2017, 278, 280 = ÖBl 2018, 75, 77 - alcohol in traffic ; July 14, 2009, 4 Ob 9 / 09s ( full text ) = MR 2010, 26, 28 = ÖBl 2010, 75, 78 - Budget Style Hotel . So also Ciresa in Ciresa, Austrian copyright law , status: 19th EL 2017, § 1 Rn. 33. See also Kucsko in Kucsko / Handig, copyright law , 2nd edition 2017, § 1 marginal no. 38 (“certain presumption”).
  35. ↑ Kucsko in Kucsko / Handig, copyright , 2nd edition 2017, § 1 marginal no. 38.
  36. ↑ Clemens Bernsteiner, The music quotation in copyright law: At the same time a contribution to the concept of musical work , Facultas, Vienna 2017, ISBN 978-3-7089-1664-4 , p. 52; Christian Handig, Simply original ... an idea has to be: The protectability of ideas according to the UrhG , in: Austrian Gazettes for Intellectual Property and Copyright Law , Vol. 59, No. 2, 2010, pp. 52–57, here p. 56.
  37. ↑ In this sense Christian Handig, photo motif - protection or freedom? Copyright protection of motifs in photographs , in: ipCompetence , Vol. 6, 2011, pp. 55–69, here p. 66; Heidinger, The demarcation between dependent processing and free re-creation , 2011, op. Cit., P. 141 (“[in] the field of photography […] particularly easy to imagine”).
  38. ↑ Dessemontet in de Werra / Gilliéron, Propriété intellectuelle , 1st edition 2013, Art. 28 LDA N 11; ders., Le droit d'auteur , 1999, para. 171 (subjective novelty sufficient); Rehbinder / Viganò, URG , 3rd edition 2008, Art. 2 para. 2; Troller, Immaterialgüterrecht , Vol. 1, 3rd ed. 1983, p. 369 (authors can also "each assert all rights for his work and next to the other"; another view in The importance of statistical uniqueness in copyright thinking , in : Hans Merz and Walter R. Schluep (eds.), Law and Economy Today: Festgabe for the 65th birthday of Max Kummer , Stämpfli, Bern 1980, ISBN 3-7272-9203-2 , pp. 265–276, here p. 272: no copyright protection for parallel creations); Martina Altenpohl, The copyright protection of research results , Stämpfli, Berlin 1987, p. 66; Saskia Eschmann, legal protection of fashion design , Stämpfli, Bern 2005, p. 139; Markus Ineichen, The copyrighted work as a symbol for goods and services , Stämpfli, Bern 2002, pp. 28, 35; Mijatovic, Creativity as a Prerequisite for the Copyright Protection of Intellectual Products , 2006, op. Cit., P. 116; Manfred Rehbinder and Christian Rohner, On the legal protection of news agencies using the example of the Swiss Dispatch Agency , in: Archive for Copyright, Film, Radio and Theater Law (UFITA) , Vol. 139, 1999, pp. 123-231, here p. 144; Florent Thouvenin, mistake: The smaller the scope for design, the sooner the protection requirements are met , in: Mathis Berger and Sandro Macciacchini (eds.), Popular mistakes in copyright , Schulthess, Zurich a. a. 2008, ISBN 978-3-7255-5577-2 , pp. 61-73, here p. 70; Gregor Wild, From statistical uniqueness to sociological concept of work: On the 35th anniversary of Max Kummers' publication of "The work that can be protected by copyright" , in: Journal of Intellectual Property, Information and Competition Law (sic!) , Vol. 8, No. 1, 2004, pp. 61–67, here p. 61.
  39. ↑ So v. Büren / Meer in v. Büren / David, Swiss Intellectual Property and Competition Law , Vol. II / 1, 3rd edition 2014, Rn. 180 (with reference to BGer, June 13, 2000, 4C.86 / 2000 = sic! 2007, 729, 730 f. - Vaca lechera ); Hilty, Copyright , 2011, para. 86 ff., In particular 89; Marco Handle, The copyright protection of the idea , Stämpfli, Bern 2013, p. 183 f.
  40. ↑ In this sense, Cherpillod in Müller / Oertli, Copyright Act , 2nd edition 2012, Art. 2 Rn. 24, 30; Hilty, Copyright , 2011, para. 89; Macciacchini, error: the double creation is protected by copyright , 2008, op. Cit., P. 33 f .; ders., Copyright and Freedom of Expression: Examined on the subject of the use of copyrighted works in media reporting , Stämpfli, Bern 2000, pp. 95 ff .; Michael A. Meer, The collision of intellectual property rights: Overlapping of copyright, trademark law and design law and their consequences - an investigation using the example of the protection of fictional characters , Stämpfli, Bern 2006, ISBN 3-7272-0469-9 , pp. 89 ff. Others View Rehbinder / Viganò, URG , 3rd edition 2008, Art. 2 marginal no. 2; Frank Vischer, Copyright and Fine Arts , in: Swiss Association for Copyright (Ed.), 100 Years of Copyright Law: Commemorative publication on the centenary of a federal copyright law , Stämpfli, Bern 1983, ISBN 3-7272-0561-X , pp. 251-262 , here p. 259.
  41. ↑ Zurich Higher Court of July 7, 2009, file no. LK060009 / U = sic! 2010, 889, 894 - Love (with Thouvenin rejecting this ).
  42. ↑ In this sense, for example, Troller, Immaterialgüterrecht , Vol. 1, 3rd ed. 1983, p. 369; Mijatovic, Creativity as a prerequisite for the protection of intellectual products by copyright , 2006, op.cit., P. 118.See also Wolfgang Straub, Individuality as a key criterion of copyright , in: Commercial legal protection and copyright, International Part , Vol. 50, No. 1, 2001, pp. 1-8, here p. 4 f. (statistical uniqueness “by its nature never absolute”).
  43. ↑ So Macciacchini, error: The double creation can be protected by copyright , 2008, op. Cit., P. 33, and, almost word for word, Hilty, Copyright , 2011, Rn. 86.
  44. ↑ Hilty, Copyright , 2011, Rn. 87.
  45. ↑ Marco Handle, The copyright protection of the idea , Stämpfli, Bern 2013, p. 183; Mark Schweizer, civil law culpability in the violation of property rights , in: Zeitschrift für Immaterialgüter-, Informations- und Competitionrecht (sic!) , Vol. 19, No. 1, 2015, pp. 1–14, here p. 10.
  46. ↑ Manfred Rehbinder and Christian Rohner, On the Legal Protection of News Agencies Using the Example of the Swiss Dispatch Agency , in: Archive for Copyright, Film, Radio and Theater Law (UFITA) , Vol. 139, 1999, pp. 123-231, here p 144.
  47. ^ So Marco Handle, The copyright protection of the idea , Stämpfli, Bern 2013, p. 184 f. Similar to Saskia Eschmann, Rechtsschutz von Modedesign , Stämpfli, Bern 2005, p. 139.
  48. ↑ Aargau Commercial Court of January 5, 2015 (action procedure) = sic! 2015, 449, 453 f. - Skull tattoo .