Germany: conflict between design and copyright law?
On November 13, 2013, the Federal Court of Justice of Germany Bundesgerichtshof, overruling well-established case law, found that the requirements for protecting works of applied art under copyright law must be the same as the standards for protecting works of fine art. Since works of applied art include industrial designs, this is good news for designers and design right holders. However, given this abrupt turnaround, practitioners may feel disoriented, in particular when it comes to parallel protection under design and copyright law.
The status quo
The question of conflict or overlap between copyright law and design law has never been the subject of legislation in Germany. Rather, the courts, and especially the Federal Court of Justice, have established that substantive requirements in the sense of degree of originality or degree of aesthetic content for establishing copyright protection for works of applied art must be more stringent than those for works of fine art, provided that such a work of applied art was susceptible to design protection.
This clear distinction—established decades ago and last re-confirmed some 20 years ago in 1995 (Carline Thistle) and some ten years ago in 2004 (Metal Bed)—was justified by the assumption that the subject matter of protection under design law was in principle the same as that protected by copyright, and both laws would differ only gradually in the required level of artistic creation. As designs protected under design law had to be novel and had to show a certain level of originality, copyright law should require a higher degree of creativity or originality (in the sense of “significantly surmounting the originality of the average design”) in order to allow an industrial design—a work of applied art—to be protected under copyright law.
EU design and copyright law harmonisation
Design law in Europe consists of EU design legislation providing for registered and unregistered Community designs, governed by Council regulation (EC) No. 6/2002 of December 12, 2001 on Community designs (Community Designs Regulation–CDR) and national design laws in the 28 member states of the EU, as to a substantial degree harmonised by Directive 98/71/EC of the European parliament and of the Council of October 13, 1998 on the legal protection of designs (Designs Directive).
