An interesting ruling from my field of IT law comes from the Kammergericht in Berlin. It deals with the question whether a virtual object constitutes a product in the sense of § 72 UrhG or not.

This is denied by the Kammergericht (the higher regional court in Berlin). It ruled that an image of a virtual object created on a computer by means of electronic commands does not constitute a product within the meaning of Section 72 UrhG that is produced in a manner similar to a photograph.

This would also apply if the graphic appeared to be a photograph, since the result of the creative process was not the decisive factor. Rather, the only decisive factor was the production method and, in this respect, the comparability of the technical processes.

The case

The parties disputed the reproduction of product images. In addition to refraining from making the images accessible, the plaintiff asserted a claim for information about the extent of the use of specific product photos and about the origin of a product photo.

The Regional Court had still sentenced the defendant as requested. The defendant defended itself against this, as it was of the opinion that the images in dispute were not protected by copyright pursuant to Section 2 (2) of the German Copyright Act. 1 No. 5 UrhG would enjoy. On the one hand, they would not be classic photographs, and on the other hand, there would be clear differences both in the creative process and in the creative result. The images also lacked the necessary quality pursuant to Section 2 (2) of the German Copyright Act. 1 UrhG (German Copyright Act).

The decision of the Kammergericht

The Court of Appeal agreed with this interpretation and allowed the appeal. Computer-generated images would not qualify as works of fine art under § 2 para. 1 No. 4 UrhG (German Copyright Act). The concept of fine art includes all personal creations that are produced with the means of representation of art through form-giving activity. In principle, computer animations or graphics can also enjoy this protection, but only if they are not based solely on the activity of the computer. In this context, a work of visual art including the applied arts shall be deemed to be a personal intellectual creation pursuant to Section 2 (2). 2 UrhG is required. According to the case law of the Federal Court of Justice, a personal intellectual creation is a creation of individual character whose aesthetic content has reached such a degree that, in the opinion of circles receptive to art and reasonably familiar with art appreciation, it can be said to be an “artistic” achievement.

In this respect, no other standard of review results from the Cofemel decision of the ECJ of last year, in which the ECJ continues its established case law. In this decision, the ECJ addresses the issue of copyright protection of models(see my post) that have a special aesthetic effect beyond their intended use. Accordingly, copyright protection requires that the models be original works. In doing so, it referred to its previous case law, according to which any original object that is an expression of its author’s own intellectual creation can be classified as a work within the meaning of the Copyright Directive.

According to the court, it is not evident that this decision would have led to a lowering of the requirements for copyright protection.

According to the Senate, however, the question of whether the aesthetic effect of an object is relevant for classification as a work was not decisive in the present case, since the graphics already lack the originality required for classification as a personal creation.

In a departure from the earlier case law of the Federal Court of Justice, products of applied art are no longer subject to more stringent requirements than works of non-purpose art. Nevertheless, it must be taken into account when assessing whether the design level still required has been reached that the aesthetic effect of the design can at any rate only justify copyright protection insofar as it is not owed to the purpose of use but is based on an artistic achievement.

An author’s own intellectual creation presupposes that there is scope for design and that the author uses it to express his creative spirit in an original way. The scope for artistic design is regularly limited in the case of objects of daily use which must have design features dictated by the purpose of use.

The plaintiff was not able to demonstrate the required level of design, that it turned out that the “pictures were created by means of software on the screen”. The fact that there may have been some leeway in the design of the colors, the contrasts and the light reflections was not sufficient for the Kammergericht. Most of the design elements were rather basic elements of the perspective representation of three-dimensional bodies on two-dimensional surfaces.

Also no photos

The court also did not recognize photographic images within the meaning of the Copyright Act

The images in dispute are not photographs. This includes all images that are created when radiation-sensitive layers undergo a chemical or physical change due to radiation. […] In any case, this is already not the case with graphics created on the computer.

Finally, the Board did not recognize any products made similarly to a photograph.

In this assessment, the starting point for the interpretation of Section 72 UrhG is the wording of the provision, according to which the decisive factor is the creative process and not the result of the creative process. Accordingly, in answering the question of what is meant by “products similar to photographic images”, the result of the production process alone cannot ultimately be decisive. Otherwise, any image that visually looks like a photograph, such as photorealistic works, would already be classified as a product similar to a photograph. Such an interpretation would, however, draw the line at creations that are more similar to drawings in terms of their mode of creation and thus fall within the scope of application of Section 2 (2) of the German Civil Code. 1 No. 4 or No. 7 UrhG are blurred.

Comments on the separation of powers

Interesting in the judgment is also the following execution of the Kammergericht:

The fact that, in the context of the reform of copyright law in 1962, there was already an awareness that copyright law is strongly influenced by technical developments, that there are always new questions of applicability, and that it therefore lags behind the technical possibilities, cannot lead to a different assessment in the present case. It is true that, in view of the accelerated change in social conditions, it is fundamentally one of the tasks of jurisprudence to adapt the laws to changed conditions. However, this must always be done with due regard for the principles of separation of powers and the binding force of the law. Against this background, the judicial development of the law must respect the basic decision of the legislator and interpret it within this given framework. It is unacceptable for the current state of the law to move further and further away from the wording of the laws.

The Board therefore concludes that:

In this respect, it should first be borne in mind that computer graphics are not completely unprotected under copyright law. Rather, they enjoy copyright protection under the conditions of § 2 UrhG. However, the question of whether they should also be granted a privilege within the meaning of Section 72 UrhG must be answered in the negative, taking into account the basic legislative decision taken to date. In any case, no other interpretation can be inferred from the purpose of copyright law. In a deliberate decision, the legislator had at that time limited the privilege of Section 72 UrhG solely to photographs and similarly produced products. The question of whether the scope of this standard should be opened to computer graphics when they are created in a kind of virtual photo studio is a fundamental value decision that the legislature must make. By including computer graphics in the scope of protection, the existing boundary between the purely pictorial representation of existing motifs and the pictorial representation of non-existing motifs going beyond this would be abolished. Furthermore, this would also readjust the boundary between copyright and ancillary copyright.

And further, the Kammergericht stated that the demand for the inclusion of such graphics in the scope of protection of § 72 UrhG was understandable in view of the development of computer technology, which has led to completely new design and editing possibilities, and that clear contradictions in value would already arise today.

However, this break was already inherent in the law, so that it would also be the task of the legislator to adapt the existing regulations in a sensible way, taking into account technical developments.