The Quick and Easy Guide to German and EU Intellectual Property Law, Trademarks and Copyright
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Facebook vs. StudiVZ

In the case Facebook vs StudiVZ the Regional Court Dusseldorf ruled against Facebook, allowing StudiVZ to continue their service.

StudiVZ is a German social networking site similar to Facebook. The very similarity was also the reason for Facebook’s legal action against StudiVZ. The court ruled that despite a similarity of look & feel, StudiVZ does not misrepresent its origin and is no unfair imitation of Facebook. Facebook did not have enough profile in the German market when StudiVZ came to market in 2005. In so far as Facebook claimed that StudiVZ had unlawfully copied proprietary php code, Facebook did not provide enough evidence to prove a copyright infringement.

(Regional Court Dusseldorf 16.06.2009, 33 O 374/08)

So, the German tradition of scouting new Internet trends in the US and bringing them to market in Germany will continue. Sad but true, there are many successful Internet start ups in Germany but probably less than a handful genuine German “first movers”. The rest is “me too”.

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July 1, 2009   No Comments

Concept of “extraction” does not require physical copying

The concept of “extraction” within the meaning of Article 7 of Directive 96/9 EC does not necessarily require physical copying. Transferring the elements of one database to another database following visual consultation of the first database and a selection on the basis of a personal assessment of the person carrying out the operation can also be an extraction pursuant to Article 7 of Directive 96/9.

Directive 96/9 EC is meant to provide “legal protection of databases in any form”. Article 7 of this  Directive stipulates a sui generis right to the maker of a database to prevent extraction, provided the maker has made a substantial investment in the database (e.g. time).

Here the European Court of Justice (ECJ) had to decide a case where the claimant had created an anthology based on a list of verse titles of important German poems, which he (the claimant) had compiled and published on the Internet. The defendant has published a CD ROM “1 000 poems everyone should have” whereby the vast majority of poems in this collection also appear in the list published by the claimant.

The defendant selected the poems as follows:
The claimant’s list was used as a guide. Certain poems on the list were omitted, and others added. Each poem was critically examined before selected for inclusion in the CD ROM. The actual texts of the poems were taken from the defendant’s own resources.

(European Court of Justice 09.Oct. 2008, C‑304/07)

Based on this decision the “screen scraping” decision of the Higher Regional Court of Frankfurt (6U 221/08) could have well been a different one. It looks a bit as if the court wanted to get the work done quickly without digging too much into detail. So they choose the easy route, ruling that no essential parts of that database were affected nor did the screen scraping process interfere unreasonably with database maker’s legitimate interest. By going down this path, there was no need to deal with the concept of extraction and other principles related to Directive 96/9.

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June 29, 2009   No Comments

Screen scraping flight schedule not infringing copyrighted database

The Higher Regional Court of Frankfurt has decided, that using a method called “screen scraping” to refer customers to buy airline tickets online is legal and does not infringe copyrights.

The claimant operates a website where users can search for flights. Based on these search queries, flight schedules on (airline) websites are being searched by a spidering tool to retrieve matching flights. Relevant results (including price) are then displayed back on the claimant’s website, whereby the Internet user has the opportunity to book flights. The defendant stated that this practice was unlawful, especially infringing their copyrighted database.

The court has decided that “screen scraping” did not infringe the defendant’s copyrights. Data records of single flight connections can not be deemed as “essential parts” of the database. The screen scraping process is not a duplication or use pursuant to Art. 87b (1) Copyright Act.

The court further reasons, that the screen scraping still was within the limits of normal analysis and that the defendant’s interests were not unreasonably interfered with.

(Higher Regional Court Frankfurt/ Main, 05. March 2009 -  6 U 221/08 )

I think one should be careful here. It would be hazardous to take this decision as a free ride to harvest web sites on the Internet. Slight differences in the scraping process or monetizing model might as well have led to a different outcome.

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June 24, 2009   No Comments

German and US Copyright Law

US and German copyright laws are based on different principles which often causes confusion. One of the main differences relates to the creator’s exploitation rights. Pursuant to the German Copyright Act, a creator may sell the rights of utilisation but will retain in essence all exploitation rights.

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June 3, 2009   1 Comment

What the German Copyright Act does NOT protect

A common misconception seems to be that ideas can be protected by Copyright laws. For example the concept of a new TV show.

A nice idea, as under the German Copyright Act works are protected from the moment of their creation, no further formalities required. Unfortunately, ideas are not protected under the German Copyright Act.

Generally spoken, the Copyright Act protects the form an idea is given. How a work is composed and structured. The underlying idea itself is not protected. Admittedly, it can be quite difficult to distinguish “form” and “idea” from one another. The more alike two compositions the more likely a copyright infringement is.

The same misconceptions apparently exist in the UK. Click here for a detailed and comprehensive article from one of my favourite UK IP blawgs, Shireen Smith’s IP-brands.

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May 28, 2009   No Comments

German Inellectual Property Laws – an Overview

Under German law, intellectual property is divided into seven main categories, and each of them is regulated by specific laws. The protection provided under these laws differs in terms of the type of intellectual property protected, origination and duration of protection.

Copyright (Copright Act – UrhG): protects personal, intellectual creations (e.g. photographic works, books, musical works). Protection originates from creation itself. Protection lasts for up to seventy years after creator has deceased.

Trademarks (Trademark Act- MarkenG): protects trademarks (registered and unregistered ), commercial designations and indications of geographic origin. Trademarks are protected from the moment of registration (or in case of unregistered trademarks as soon as relevant pre-conditions are met). Registered trademarks are protected for 10 years from registration; registration may be renewed for periods of 10 years. Without registration protection lasts as long as relevant legal pre-conditions are met.

Patents (Patent Act – PatG): protected are technical inventions that are based on inventive activities and that can be commercially applied. Protected from date patent is granted. Duration of a patent is up to 20 years.

Utility patent (Utility Patent Act – GebrMG): protected are technical inventions that are based on an inventive step and that can be commercially applied (technical and chemical procedures can not be protected by utility patents!). Protected from date utility patent is granted. Protection period can last up to max. 10 years in total. The difference to the patent lies mainly in the patent assessment. Before a “real” patent is granted, the inventive edge is actually evaluated. In contrary the assessment of a utility patent is a mere formal procedure (hence the term “petty patent”). This also means that a utility patent offers less protection and above all certainty than a patent as the inventive edge may be challenged at a later stage. Advantage: it is quicker and easier to obtain than a patent.

Design patent (Design Patent Act – GeschMG): protects novel industrial ornamental designs and models (e.g. fashion). Requires registration to be protected. Can be protected for up to 20 years.

Plant variety protection (Plant Variety Protection Act – SortSchG): it´s all in the name. Protected are novel, distinguishable, consistent and homogeneous plants. Requires registration to be protected. Can be protected between 25 to 30 years.

Semiconductor protection (Semiconductor Protection Act – HalblSchG): protected is the topography of a semiconductor if they are characteristic. Protected if registered within 2 years from first commercial exploitation. Protected for 10 years.

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May 7, 2009   No Comments