Small coin

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As a small coin in are copyright of Germany such works referred to are at the lowest limit of just barely copyrighted work. The term relates to designs that meet the requirements of the copyright work term and are therefore fundamentally eligible for legal protection. However, they only have a low level of creative expression (so-called height of creation, design or work ); that in turn casts doubt on the worthiness of protection. German law has always accepted the small coin - with the exception of commercial graphics or applied art serving a purpose - as worthy of copyright protection.

While the ARD logo itself cannot be considered a “little coin” in terms of copyright law, since a graphic can be protected as a design patent. B. the Tagesschau jingle is protected by copyright as a form of the small coin, even if it only consists of six tones.

principle

The small coin determines the lowest limit of the works that can just be protected by copyright. It is therefore also referred to in a much-cited sentence as the "stepchild of copyright law", but it is true that "even the small coin is still a coin, although on the borderline it is still just within the copyright protection term". The work in question must have a sufficient amount of creative content in addition to the requirements for the work definition. The term “little coin” simply means that the bar can be set low in terms of design height. In this way, even simple works can be protected by copyright that have a weak level of individual, creative and creative expressiveness. It is decisive that a creatively valuable and therefore worthy of protection achievement was created. The degree of necessary expressiveness is required to a different extent in the various types of work: The lower limit of protection is set higher for works of literature, whereas in the musical field even the simplest melodies such as B. Jingles can be protected as small coins.

For a long time, the protection of the small coin was not used in applied arts such as commercial graphics or product design . The Federal Constitutional Court justified this with the possibility of design protection for handicrafts, which displaces copyright in the lower areas worthy of protection as a lex specialis .

In November 2013, the Federal Court of Justice ruled that the copyright protection of works of applied art within the meaning of Section 2 Paragraph 1 No. 4, Paragraph 2 UrhG basically had no other requirements than the copyright protection of works of non-purpose visual art or of literary and musical creation. It is therefore sufficient that they reach a level of design that justifies speaking of an "artistic" achievement in the opinion of those circles who are receptive to art and who are reasonably familiar with art views. On the other hand, it is not necessary that they clearly exceed the average structure.

Historical background

The term “small coin” was coined in 1921 by the legal scholar Alexander Elster in his basic textbook on industrial property protection and quickly found its way into legal terminology . Since the Weimar Republic, the judiciary has also assumed that only a "low degree of individual creativity" is sufficient to justify protection. The German copyright law of the Federal Republic adhered to this legal tradition before and after the introduction of the Copyright Act in 1965. With regard to the so-called small coin, the Federal Court of Justice is still in the tradition of the case law of the Reich Court .

Younger development

There is increasing criticism of the legal institution of the small coin. It is often argued that it can be determined almost arbitrarily and that it is not subject to clear criteria. It is often considered sufficient if the protection of simply structured works would be taken over by competition law or a law set up specifically for this purpose (e.g. OlympSchG ). This could at least prevent the exploitation of clever ideas. However, this is countered to this day by the fact that copyright law was set up to protect small, cultural achievements. Therefore a looser handling would be contrary to the will of the legislature.

This is countered by a tendency, with reference to the uniform work concept of copyright law and the development of European legislation, to expand the small coin as the lower limit of copyright protection to all types of work, i.e. also in the field of applied art. Other voices warn against this, since a lowering of the standard up to a “generalized protection against imitation” would mean a “relativization of the copyright protection and a shift from the author orientation to the work and investor orientation” as well as problems with the copyright contract law .

Concrete legislative measures to abolish or weaken the protection of the small coin are currently not apparent. In 2014, however, the legal scholar Marcel Bisges demonstrated by means of an empirical study of 118 small coin cases that court decisions on the copyright protection of a product essentially do not depend on the design level of a product, which can in any case be objectively barely determinable, but in fact on its manufacturing effort. The work property is always affirmed if there is a high production cost, a high economic value or a prominent author - although case law and literature expressly emphasize that economic aspects should not play a role in the decision. In this respect, it is questionable how long the case law can justify its small coin decisions with the level of design. According to Bisges, taking into account the cost of production is in any case sensible from a welfare point of view, leads to efficient and fair results and should no longer be obscured by case law. After all, this feature can be checked objectively. Bisges therefore proposes an improved work definition that takes into account the manufacturing effort of the product instead of the design level.

Examples

Examples of works that enjoy copyright protection despite their low individual character are: simple recipe or music collections , simple computer programs , memorable sequences of notes (e.g. jingles) and the like. For example, the six-tone episode of the Tagesschau is protected by copyright despite its simplicity. For further specific examples from case law, see below.

literature

practice

research

Jurisprudence

  • BGH in Archive for Copyright and Media Law (UFITA) 1968, p. 315 (315ff.) ( Gaudeamus igitur )
  • BGH judgment of September 26, 1980 - Az. I ZR 17/78 - in GRUR 1981, p. 267 (267ff.) (Dirlada)
  • BGH judgment of February 3, 1988 - Az. I ZR 143/86 - in GRUR 1988, p. 810 (810ff.) (Fantasy)
  • BGH judgment of February 3, 1988 - Az. I ZR 142/86 - in GRUR 1988, p. 812 (812ff.) ( A little peace )
  • BGH judgment of January 24, 1991 - Az. I ZR 72/89 - in GRUR 1991, p. 533 (Brown Girl II)

Web links

Individual evidence

  1. ↑ Schulze 1983, p. 1.
  2. ↑ Schulze 1983, p. 3.
  3. ↑ Decision of January 26, 2005, Az. 1 BvR 1571/02 on applied arts (Laufendes Auge)
  4. ↑ BGH, judgment of November 13, 2013 - I ZR 143/12 - Birthday train ; Submitted by BGH, judgment of June 22, 1995 - I ZR 119/9 - Silberdistel
  5. ↑ Till Kreutzer: Birthday train: How the BGH extends design protection January 18, 2014
  6. ^ Gerhard Schricker : Farewell to the level of design in copyright law. In: Jürgen Becker , Peter Lerche , Ernst-Joachim Mestmäcker (eds.): Wanderer between music, politics and law - Festschrift for Reinhold Kreile on his 65th birthday. Nomos, 1994, ISBN 3-7890-3481-9 , pp. 715-721.
  7. ^ Adolf Dietz : The copyright contract law in its legal-political meaning. In: Friedrich-Karl Beier (Hrsg.): Copyright contract law - Festgabe for Gerhard Schricker on the 60th birthday. Munich, Beck, 1995, ISBN 3-406-39690-9 , p. 16.
  8. ↑ Marcel Bisges: The small coin in copyright law - analysis of the economic aspect of the concept of work. Nomos, 2014, ISBN 978-3-8487-1775-0 .
  9. ↑ Bisges, Kleine Münze, 2014, p. 224 ff.
  10. ↑ Bisges, Kleine Münze, 2014, p. 231 ff.
  11. ↑ Bisges, Kleine Münze, 2014, p. 233 ff.