|German Federal Supreme Court|
On one of the hottest days of the year so far members of the Intellectual Property Bar Associaiton gathered in the Pension Room of Gray's Inn to hear a presentation on German copyright law by Prof Ansgar Ohly.
The title of his talk was Birthday Train or Eurostar which cleverly summed up the subject matter in a nutshell. The Birthday Train is the name of a case before the German Federal Supreme Court in which the Court relaxed the originality requirement for the subsistence of copyright in works that could be protected by design registration in order to give effect to the Designs Directive (Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs). The case reference is Urteil vom 13. November 2013 - I ZR 143/12 - Geburtstagszug and there is a summary of the case here. The reference to Eurostar was an allusion to that Directive and other European legislation as well as decisions of the Court of Justice of the European Union of which the German courts are beginning to take account.
The Birthday Train was on originality. Prof Ohly considered other aspects of German copyright law where European law had been, or in some cases perhaps should have been, taken into account. He called one of those cases "Metal on Metal", a claim by the band Kraftwerk against a rap artist who reproduced a few bars of their recording Autobahn. The band brought their claim for infringement of their mechanical copyright rather than their musical copyright because there is no originality requirement for the subsistence of mechanical copyright. Another case was Pippi Logstocking where it was held that literary copyright could be infringed by making a carnival costume according to verbal description. Prof Ohly discussed the liability of third intermediaries, particularly ISPs. Rather surprisingly we learned that there was no equivalent of s.97A of the Copyright Designs and Patents Act 1988 in German law and that German courts would not grant blocking injunctions of the kind Mr Justice Arnold had ordered in Twentieth Century Fox Film Corporation and otherss v British Telecommunications Plc  1 All ER 869,  Bus LR 1525,  EWHC 2714 (Ch).
As I had dashed down to London in some haste I did not get an opportunity to grab a notebook from chambers so I took no notes. So far as I could see glancing at the rest of the audience neither did anyone else which was a pity. Some of the things that Prof. Ohler said were real eye openers. It was hard to believe at times that Germany and Britain were both signatories to TRIPs and the Berne Convention. I do hope his talk or its substance will be published somewhere because the legal reasoning in some of the cases is startling.
After the talk we trundled off to the extremities of Gray's Inn where we sipped champagne and munched mini fish and chips and Yorkshire puddings as well as the more usual finger food and canapés. The caterers must have heard that I was in town. It was good to see all my old chums again.
Axel Horns "Germany: Copyright Protection More Easily Available For Works Of 'Applied Arts'” 14 Nov 2013 KSNH Law