The work in copy­right

What is pro­tec­ta­ble as a work in copy­right law at all?

§ Sec­tion 2 of the Copy­right Act regu­la­tes the con­cept of a work under copy­right law, i.e. deter­mi­nes what is pro­tec­ta­ble as a work under copy­right law:

“1) Pro­tec­ted works of lite­ra­tu­re, sci­ence and art include in par­ti­cu­lar:

1. Speech works, such as writ­ten works, spee­ches and com­pu­ter pro­grams;
2. Works of music;
3. pan­to­mi­me works inclu­ding the works of dance art;
4. Works of fine arts inclu­ding works of archi­tec­tu­re and appli­ed arts and designs of such works;
5. Pho­to­gra­phic works inclu­ding works crea­ted simi­lar­ly to pho­to­gra­phic works;
6. Cine­ma­to­gra­phic works inclu­ding works crea­ted simi­lar­ly to cine­ma­to­gra­phic works;
7. Repre­sen­ta­ti­ons of a sci­en­ti­fic or tech­ni­cal natu­re, such as dra­wings, plans, maps, sket­ches, tables and pla­s­tic repre­sen­ta­ti­ons.
(2) Works within the mea­ning of this Act are only per­so­nal intellec­tu­al crea­ti­ons.”

Only works of lite­ra­tu­re, sci­ence and art are eli­gi­ble for pro­tec­tion. In this con­text, an inde­pen­dent con­cept of work is used and not a con­cept rela­ted to art or lite­ra­tu­re, wher­eby the terms lite­ra­tu­re, sci­ence and art are to be inter­pre­ted broad­ly. The examp­les lis­ted are not an exhaus­ti­ve list of works. It should be distin­gu­is­hed abo­ve all from tech­ni­cal ser­vices, which are not eli­gi­ble for pro­tec­tion. The con­cept of work con­ta­ins 4 dif­fe­rent ele­ments: The per­so­nal crea­ti­on, the intellec­tu­al con­tent, the design and the indi­vi­dua­li­ty.

The often used terms “level of crea­ti­on” and “level of design ” are not ele­ments in their own right, but repre­sent the degree of indi­vi­dua­li­ty.

a) Per­so­nal crea­ti­on

The per­so­nal crea­ti­on needs a human-crea­ti­ve acti­vi­ty. This ser­ves pri­ma­ri­ly to distin­gu­ish them from works of machi­nes or only found objects that have not been work­ed on by humans.

b) Spi­ri­tu­al con­tent

A Spi­ri­tu­al Con­tent requi­res that the human spi­rit must be expres­sed in the work. This means it must con­tain a state­ment or mes­sa­ge bey­ond the mere­ly per­cep­ti­ble. The work must have a spi­ri­tual­ly sti­mu­la­ting effect.

c) Per­cep­ti­ble shape design

The work must also have a form that is per­cep­ti­ble through the sen­ses. Howe­ver, a phy­si­cal or even per­ma­nent com­mit­ment is not requi­red. Thus, even an impromp­tu poem or an impro­vi­sed pie­ce of music can be pro­tec­ted.

d) Indi­vi­dua­li­ty

Indi­vi­dua­li­ty is the cen­tral cri­ter­ion of the con­cept of work under copy­right law. It distin­gu­is­hes the copy­righ­ta­ble work from the mass of the ever­y­day and banal.
The term design level descri­bes the dif­fe­rent level of indi­vi­dua­li­ty. The indi­vi­dua­li­ty results from the con­cep­ti­on of the work or its form design. Ulti­m­ate­ly, a sum­ma­ry assess­ment of all design ele­ments is always requi­red and it is a case-by-case decis­i­on whe­ther the neces­sa­ry limit of indi­vi­dua­li­ty has been rea­ched.

e) Pro­tec­tion of the small coin

The lowest limit of what can be pro­tec­ted is the so-cal­led small coin. The­se are simp­le designs with a mini­mal level of crea­ti­on, but which are still pro­tec­ta­ble. The­se are, for exam­p­le, cata­logs, coll­ec­tions of coo­king recipes or simp­le melo­dies.

f) Pro­tec­tion of the idea

A mere idea is not pro­tec­ta­ble by copy­right. Abs­tract ide­as can­not be mono­po­li­zed. Howe­ver, an idea often lacks the neces­sa­ry per­cep­ti­ble form design. The idea must also rela­te to a copy­righ­ta­ble sub­ject mat­ter. It must be more than an unfor­med thought in order to meet the requi­re­ments of indi­vi­dua­li­ty. Only when an idea alre­a­dy repres­ents a con­cept that meets the requi­re­ments of the 4 ele­ments can it be eli­gi­ble for pro­tec­tion.

g) Examp­les

Social games and other games can be pro­tec­ta­ble in their con­cre­te form. Howe­ver, the idea or the sys­tem alo­ne are not suf­fi­ci­ent. Adver­ti­sing slo­gans and slo­gans can enjoy copy­right pro­tec­tion, but they are usual­ly so brief that they do not lea­ve enough room for a suf­fi­ci­ent crea­ti­ve design. Maga­zi­ne and news­pa­per artic­les are usual­ly intellec­tu­al per­so­nal crea­ti­ons. Cata­logs, pri­ce lists, etc. usual­ly do not con­tain per­so­nal crea­ti­ons and are pro­tec­ta­ble only in excep­tio­nal cases. Web­sites and user inter­faces can be pro­tec­ted as lin­gu­i­stic works if they have the neces­sa­ry indi­vi­dua­li­ty. Sci­en­ti­fic stu­dies and expert opi­ni­ons are eli­gi­ble for copy­right pro­tec­tion, but not the theo­ries, dis­co­veries, etc. on which they are based. Eco­no­mic or com­mer­cial orga­niza­tio­nal sys­tems, on the other hand, are not eli­gi­ble for pro­tec­tion.


In sum­ma­ry, all 4 ele­ments of the work con­cept must always be pre­sent for a pro­tec­ta­ble work. The most pro­ble­ma­tic issue is usual­ly whe­ther the neces­sa­ry indi­vi­dua­li­ty has been achie­ved. In any case, it is always a case-by-case decis­i­on whe­ther and when a work belongs to the works eli­gi­ble for pro­tec­tion.

If you have any ques­ti­ons or need assis­tance with a copy­right inf­rin­ge­ment dis­pu­te, plea­se feel free to cont­act us by pho­ne at 0221–4201074, by email at info@rehkatsch.de, or sche­du­le an appoint­ment with our law firm.

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