Supreme Court reduces requirements for copyright protection


Jens Künzel

‘Birthday trains’ are toys, usually made of wood, with holes in each wagon in which little candles can be stuck. They are very popular in Germany to celebrate children’s birthdays.

 Every wagon has a different shape and colour, and they may also carry numbers for the child’s age. When the candles are lit the whole arrangement looks very celebratory. Most German children aged 10 or younger have experienced at least one birthday (his or her own or another child’s) where such a train has been present.

Such a birthday train was the subject matter of an important case decided by Germany’s Supreme Court in November 2013, the legal findings of which have the potential to change profoundly the German laws of copyright protection for commodities. It will probably have a serious impact on the legal landscape in Germany, especially in cases of product piracy and authors’ claims to adjust subsequently the compensation they receive for a certain design.

It had been the law in Germany for at least 20 years (since a case called Silberdistel [silver thistle]) that copyright protection for commodities was granted only if the quality of their design significantly surpassed the average design. So the requirements for protection in cases where commodities were concerned were held to be higher than in other categories of copyright protection, eg, written works or fine arts, where such a “superior” quality of the work was not demanded.

Birthday trains, German Supreme Court, Silberdistel, commodities