Germany: Copyright Protection More Easily Available For Works Of “Applied Arts”

Common Household Objects now falling under German Copyright

Back in 2004, Germany saw a fundamental reform of the German Act on Registered Designs (“Geschmacksmustergesetz”): Before, Gebrauchsmusterschutz was defined as sort of a small coin of Copyright (“Kleine Münze des Urheberrechtes”). In particular, the old Act on Registered Designs made use of the concept of level of originality (“Gestaltungshöhe”) which is a characteristic of German Copyright (Urheberrecht). Thereafter, the new Geschmacksmustergesetz (only recently renamed in German as Gesetz über den rechtlichen Schutz von Designs because of even many German native speakers did no longer understand what really was meant in this context with the German word “Geschmack” which normally would translate to “taste”.) was a fresh start from scratch undertaken to fulfil the requirements of the Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs. Since this reform, German Geschmacksmusterrecht no longer was officially defined as small coin of Copyright. The the concept of level of originality disappeared from the law.

In the old times before the reform in 2004, creators of everyday’s works of so-called applied arts (“Angewandte Kunst”) were referred to the Gebrauchsmusterschutz whereas creators of purpose free arts (“Zweckfreie Kunst”) were in a position to gain protection by Copyright law more easily. In order to be eligible for Copyright protection, works of  applied arts needed to show some higher level of originality than works of purpose free arts. This meant that the designs of many common household objects etc. were effectively copyright-free unless the design was registered as Geschmacksmuster. This does not mean that object designs generally were excluded from Copyright; it was just harder to obtain protection. For example, the design of the famous cantilever chair created by Mies van der Rohe et al. in all its elegance was found to be protected by Copyright in 1932 by German Reichsgericht.

But on November 13, 2013, the German Federal Supreme Court (Bundesgerichtshof, BGH) has clarified in Decision I ZR 143/12 (Press Release [in German]) that after entering into force of the reformed Geschmacksmustergesetz based on Directive 98/71/EC in 2004 there is no longer any room for a differentiation between works of applied arts, on the one hand, and works of purpose free arts, on the other hand, when it comes to the consideration of the required level of originality required for being eligible to Copyright protection.

In practice this means that, related to Germany, discussion of design infringement even in cases with common household objects etc. must no longer stop after evaluating registered Designs (formerly known as Geschmacksmuster). From now on, it is clear that Copyright should be considered also in small-coin cases.

As there is no such thing like a Copyright Register, it is hard to search for earlier rights. Theoretically, the creator of some new common household article etc. might feel safe if he or she is sure that the design in question indeed is a creation of his or her own. But in court, when being confronted with some earlier work looking confusingly similar, it might be hard to defend that the new design isn’t simply some derivative work of the old one. The field of common household articles might turn out to be quite crowded in the field of lower levels of originality.

(Foto: (C) 2010 by Tim Bartel aka avatar-1 via Flickr and, on 2013-11-14, licensed under the terms of a Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) license.)