Work (copyright)

from Wikipedia, the free encyclopedia

A work is a protected or protectable creation within the meaning of copyright law . The central international agreement on copyright, the Revised Bern Convention , presupposes the term and only defines types of work. “The examination in each individual case of what is to be regarded as a work” is determined “according to the law of the protected country .” The TRIPS Agreement and the World Copyright Agreement do not contain their own definitions, but refer to the Berne Convention.

Legal situation in Germany

Works within the meaning of the Copyright Act (UrhG) "are only personal intellectual creations." ( § 2 II UrhG) Such works can generally have been created in the fields of literature, science and art. In a non-exhaustive list in Section 2 (1) UrhG, the following types of work are mentioned as "protected works":

  1. Language works , computer programs
  2. Musical works
  3. Mime works including works of dance art
  4. Works of fine arts including works of architecture and applied arts
  5. Photographic works
  6. Cinematographic works
  7. Representations of a scientific and technical nature.

The decisive factor as to whether a protected work exists is whether there is a personal intellectual creation that is not defined in more detail in Section 2 (2) UrhG . The prerequisite for this is the individuality of creation, for which the height of creation has prevailed as a quantitative measure of individuality.

Work character

In German copyright law , the question of when a work is available is a central subject of legal discussion and case law on copyright law. In the most extensive commentary on the German Copyright Act (UrhG), Ulrich Loewenheim devotes himself to the interpretation of Section 2 UrhG. The first five pages are a list of literature in small print.

Protection requirements

According to Loewenheim, a distinction is made between four elements or protection requirements of the term work:

  • It must be a personal creation of the author.
  • It must have a spiritual content.
  • It must have a noticeable shape.
  • The individuality of the author must be expressed in it .
Unprotected chimpanzee painting
Personal creation
This criterion excludes the productions of nature, machines and animals. Authors are always people ( natural persons ). The works of painting chimpanzees are therefore not protected by copyright. Objects found somewhere, such as a particularly bizarre branch, are not protected by copyright. For the so-called ready-mades or objets trouvés (as by Marcel Duchamp ), however, this is already controversial. A poem that is generated by a random number generator cannot be protected. The intellectual condition or the legal capacity of the author is irrelevant for the creation of the work.
Spiritual content
The (human) spirit must be expressed in the work.
Perceptible shape
The work must have assumed a certain form that has become accessible to the human senses. It doesn't need to be physically fixed. A happening can also be protected.
individuality
It is the central criterion of the concept of the work. The more the individuality of the author is expressed in the work, the sooner the required level of creation is available. Regardless of this, works that have been created independently by two authors, but are almost identical to one another, both enjoy their own copyright protection.

The level of creation is set differently for the individual types of work ( Section 2, Paragraph 1 of the Copyright Act). This applies in particular to works of applied art (objects of daily use, handicrafts ), for which design protection comes under copyright protection (see below ). Even within individual types of work, the setting of the height of creation is controversial or inconsistent in jurisprudence. While journalistic texts are generally considered to be protected with the exception of very brief reports, the Federal Court of Justice (BGH) has based a lawyer’s brief on a higher lower limit of protection, as it assigned it to the scientific field.

No consideration of the effort

ARD logo not protected by copyright

The effort and costs with which a service was provided are considered insignificant for copyright protection. The “purely manual work, which anyone with average skills could also achieve, may also be based on appreciable diligence and solid skill”, is “outside the scope of protection”, emphasizes German case law (according to the Berlin Regional Court in a decision on Btx - Graphics). In a recent decision by the Hanseatic Higher Regional Court in Hamburg on mobile phone logos (see also below ) it is also stated that it does not matter whether the production of the logos from individual image points (“pixel by pixel”) was possibly time-consuming. This means that the sweat-of-the-brow argument does not apply in Germany .

The Federal Court of Justice denies individuality to purely manual or routine work and thus to the mass of everyday life. On the other hand, the so-called simple coin is protected , i.e. works that show a minimum of creative height.

Demarcation from the free common property

"If I write the numbers 1, 2, 3, 4, 5 on a piece of paper, can it be protected by copyright?" Asked the London judge Peter Smith in March 2006 in the sensational plagiarism case against the sacrilege author Dan Brown . Rayner James, the attorney for plaintiffs Michael Baigent and Richard Leigh, who accused the bestselling author of stealing ideas, replied: "I would say: questionable, but possible".

Particularly in the case of extremely lucrative, internationally successful works, the suspicion is often expressed that the author was based on the intellectual property of others. On the occasion of the allegations against the title No No Never by the country band Texas Lightning , nominated for the Eurovision Song Contest 2006 for Germany , the NDR entertainment director Jan Schulte-Kellinghaus said: "There are such allegations almost every year in every country".

In copyright comments on German law, the common good is often discussed when discussing free use ( § 24 UrhG). Ulrich Loewenheim writes in Schricker’s comment:

“The freely usable [...] common property includes, first of all, actual circumstances and events, everything that is predetermined by nature or history. This includes the entire physical environment of humans such as countries and landscapes, fauna, flora, natural phenomena, etc., historical persons and events [...], current events and news with actual content [...], natural laws and dates. "

For mixed news published in the press and on the radio with actual content and daily news, Section 49 UrhG expressly states that their exploitation is permitted under copyright law.

Facts and scientific knowledge are never protected, always only their concrete linguistic representation, as far as this height of creation reaches. An example is a quote from a résumé:

“As a Feodor Lynen Fellow of the Alexander von Humboldt Foundation, he then went to the University of Michigan, Ann Arbor, as a postdoctoral fellow, where he worked with Prof. JW Allen studied many-particle effects in the electronic structure of metallic materials with the help of synchrotron radiation. "

Even if one assumes that the entire curriculum vitae is protected by copyright, one can take this one sentence word for word without hesitation, since a copyright infringement can only be considered when using creative parts of the work. The quoted sentence contains nothing but facts in an extremely undemanding linguistic form. Since the whole life course may at best be regarded as the work of the little coin , it is not necessary to reformulate it completely, because the lower the height of creation, the lower the scope of protection.

From the point of view of free projects that require a rich public domain or a digital commons , it is desirable if the level of creation is set particularly high so that as much as possible belongs to the freely usable common property.

further requirements

Parts of the work enjoy independent protection if they can be viewed as individual spiritual creations on their own. Derivative works ( Engl. Derivative work ) are new creations based on a previous copyrighted work, such. B. Derivatives in software development .

Even if the threshold of the height of creation is not reached, protection can result from related property rights , the ancillary copyrights , in particular for photographs . If none of the copyright protection rights exist, for example in the case of works in the public domain or services below the level of creation, protection against the assumption of services due to unfair competition can only be considered in the commercial sector .

Legal situation in Austria

The Federal Act on Copyright in Works of Literature and Art and on Related Property Rights, in short the Copyright Act (UrhG), contains the definition of copyright law in Section 1 and the lists of protected types of work in Sections 2 to 9. The Supreme Court has changed its case law since the late 1980s and has not raised its claims since then. It is sufficient that a work can be objectively identified as art and that it is sufficiently different from other works.

Definition in Switzerland

According to Section 2, Paragraph 1 of the Copyright Act, works are such “intellectual creations of literature and art regardless of their value or purpose” that have an “individual character”.

Legal situation in other countries

literature

  • Lisa Sommer: The history of the concept of work in German copyright law . Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155507-7 .

Individual evidence

  1. ^ Fromm / Nordemann: Copyright . Kohlhammer 2008, ISBN 978-3-17-019771-8 , Nordemann § 2 Rn. 8th .
  2. ↑ § 1 UrhG
  3. ↑ Nordemann § 2 Rn. 30 in Fromm / Nordemann: Copyright . Kohlhammer 2008, ISBN 978-3-17-019771-8 .
  4. ^ Gerhard Schricker: Copyright . 2nd Edition. 1999, p. 46-132 .
  5. ^ Ulrich Loewenheim: Handbook of Copyright . Munich 2010. ISBN 978-3-406-58518-0 , p. 54.
  6. ↑ BGH, judgment of February 6, 1985 - I ZR 179/82 - "Happening"
  7. ↑ BGH, judgment of April 17, 1986 - I ZR 213/83 - "Attorney's brief"
  8. ↑ Not applicable to contracts: LG Stuttgart, decision of March 6, 2008 , Az. 17 O 68/08, full text.
  9. ↑ LG Berlin, judgment of May 6, 1986 ( Memento of the original of January 4, 2006 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. 16 O 72/86, full text. @1@ 2Template: Webachiv / IABot / www.netlaw.de
  10. ↑ OLG Hamburg, judgment of February 25, 2004 , Az. 5 U 137/03, full text - “Handy-Logos I”.
  11. ^ Ulrich Loewenheim: Handbook of Copyright . Munich 2010. ISBN 978-3-406-58518-0 , p. 62.
  12. ↑ FAZ , March 22, 2006, p. 42.
  13. ↑ FAZ , March 22, 2006, p. 9.
  14. ^ Ulrich Loewenheim: Handbook of Copyright . Munich 2010. ISBN 978-3-406-58518-0 , pp. 453 f.
  15. ↑ Press release ( Memento of the original of June 10, 2007 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. the University of Augsburg; see also Wikipedia: text plagiarism . In: Wikipedia. The free encyclopedia. Processing status: March 7, 2006, 10:08 UTC. (Retrieved March 25, 2006, 11:58 UTC) @1@ 2Template: Webachiv / IABot / www.presse.uni-augsburg.de
  16. ^ Ulrich Loewenheim: Handbook of Copyright . Munich 2010. ISBN 978-3-406-58518-0 , p. 82.
  17. ↑ BGH, judgment of April 21, 1953 , Az. I ZR 110/52, full text = BGHZ 9, 262 - Schwanenbilder; BGH, judgment of October 17, 1958 , Az. I ZR 180/57, full text = BGHZ 28, 234 - Verkehrskinderlied.
  18. ↑ Dreier Einl. Rn 37 in: Dreier / Schulze: Copyright Law , Munich 2008. ISBN 978-3-406-57758-1
  19. ↑ (§§ 1-25) UrhG Austria - explanation of key terms.
  20. ↑ Copyright Act (Austria)
  21. ^ Walter § 51 Rn. 9 in: Ulrich Loewenheim: Handbook of Copyright . Munich 2010. ISBN 978-3-406-58518-0
  22. ↑ Quoted from Hilty § 52 Rn. 10 in: Ulrich Loewenheim: Handbook of Copyright . Munich 2010. ISBN 978-3-406-58518-0