Can perfumes be protected by copyright

Works protected by copyright: what is copyrighted anyway?

The work - A key concept in copyright law

The following can initially apply to you as a basic rule: All authors of works of literature, science and art enjoy copyright protection for their works.

As an example, the German copyright law lists the following types of works in Section 2:

  1. "Works of language, such as written works, speeches and computer programs;"
    e.g. novels, magazine articles, journal articles, poems, short stories, letters, contracts, instructions, slogans; Interviews, public speeches, sermons (provided that it is a personal spiritual creation - more about that immediately)

  2. "Works of Music;"
    e.g. songs, compositions, soundtracks (provided that it is a personal spiritual creation)

  3. "Pantomime works including works of dance art;"
    e.g. choreographies, artistic performances (each provided that it is a personal intellectual creation)

  4. "Works of fine arts including works of architecture and applied arts and designs of such works;"
    e.g. paintings, drawings, engravings, designs, graphics from computer games; Sculptures, architectural structures (provided that it is a personal spiritual creation)

  5. "Photographic works including works that are created similarly to photographic works;"
    E.g. elaborately designed photographs with special design features (contrast, arrangement of objects, exposure)

    Note: Even if a simple photograph is not included in this work category, the photographer is not left defenseless. The UrhG offers him protection in § 72 UrhG through a so-called related right for “photographs”. In its scope, its protection corresponds to that of copyright law, only the term of protection is shorter.

  6. "Cinematographic works including works that are created similarly to cinematographic works;"
    e.g. films, short films, audiovisual works (provided that they are a personal intellectual creation)

  7. "Representations of a scientific or technical nature, such as drawings, plans, maps, sketches, tables and plastic representations."
    E.g. diagrams, schemes, models, architect plans, street maps (provided that they are personal intellectual creation)

However, this is not an exhaustive list; the law is open to new types of work that will only emerge after its entry into force.

But what does the law mean by a “work”?

The Copyright Act answers this question in Section 2 Paragraph 2 UrhG, but reading it does not help much for the concrete legal assessment of a situation: A work within the meaning of Section 2 Paragraph 2 UrhG must be a “personal intellectual creation”. In simplified terms, one can say that a text / image / piece of music etc. must have three characteristics in order to be considered a work in the sense of the UrhG:

  1. It must created by a human have been.
    While this criterion used to only exclude works created by animals, it is becoming increasingly important in times of artificial intelligence and computer-controlled manufacturing mechanisms.

  2. It has to be a mental achievement act in which the individual traits of the author are expressed. This excludes purely “manual” activities, such as spontaneously pressing the shutter release of a camera.
    Basically, the work must have a certain "Height of creation" exhibit; However, this does not mean that a work has to be extraordinarily creative or contain something “new”. The “little coin” also enjoys copyright protection.

  3. The work must be outside perceptible be, i.e. as long as an idea only exists in the imagination of its author, it cannot be a work in the sense of the Copyright Act.

While the first and third characteristics will probably be easy to determine in most cases, the examination of the second criterion often requires knowledge of relevant court decisions. If you are unsure about the classification of the material you are using as a work within the meaning of the Copyright Act, it is advisable to consult an expert. Because much of the scope of copyright protection - due to the unclear legal definition - is left to the judgment of the courts and is difficult for laypeople to assess.

Clearly excluded from copyright protection However, the following items are:

  • Mere ideas, procedures, procedures and mathematical concepts
  • Facts, science, teachings, theories, and abstract workings (like that of a text editor)
  • Official works (laws, ordinances, official edicts, notices, decisions, officially drafted guidelines on decisions and other works that have been published in the official interest for general information)

The protected work as an intangible good

The intellectual content of a work is protected by copyright. For this, the work does not have to be fixed in a physical work. Therefore, for example, spontaneous lectures and musical improvisations can also enjoy copyright protection.

At this point, a very significant difference between German (and all of European) law and the legal systems of common law (especially in the UK and USA) becomes apparent: For the creation of copyrights, these require that the works be on any tangible medium be fixed ("fixed in a tangible medium").

The protected work and its parts

Copyright not only covers the protection of the work as a whole, but also its parts. So can too individual chapters, paragraphs or a single sentence be protectable (but not a single word!). The decisive factor here is whether the respective part is “sufficiently individual” (i.e. at the height of creation). However, this is not determined by quantitative aspects, such as a certain number of words.

In general, however, the following applies: the larger the part of the work, the more likely it is sufficiently individual and consequently protected by copyright.

In this context, the Infopaq decision of the European Court of Justice from 2009 is worth mentioning: In the judgment it was stated that “an extract [...] from a protected work which - as in the main proceedings - consists of eleven consecutive words of the work exists, "can be protected by copyright," if such an excerpt [...] contains a component of the work which as such expresses the author's own intellectual creation. "

Edits and translations

Once a work has been published, other people may edit and change it. For example, in the case of successful novels, there are often translations or even film adaptations. The works that result from this processing (i.e. the translation of the novel or the film) are - provided that a personal intellectual creation is present - again protected by copyright.

Since, for example, the translator is often not identical with the author (i.e. the original creator), the question arises as to whether the editing can possibly affect the copyright that originally arises in the work. The question is: of course not. The author retains the copyright to the original work.

Does the author receive additional rights to the processing? The answer to that question is no. Translations and other adaptations of a work, which represent personal intellectual creations of the processor, are protected like independent works. This means that the translator or the editor himself acquires the copyright to the translation / editing. He is the person who needs to be asked for permission to use the translation / editing.

Excursus: ATTENTION! If you would like to translate a work yourself and publish it, the translation is already an act of use that requires approval. You must therefore always ask the original author of the work for his consent before the translation.

Collected works and database works

In particular when using data in the field of Corpus Linguistics the copyright protection of compilations and database works becomes relevant.

Be like that Collections of works, data or other elements that are a personal intellectual creation due to the selection or arrangement of the elements, without prejudice to any copyright or related property right that may exist on the individual elements, such as independent works.

This also applies Database worksthe elements of which are arranged systematically or methodically and are individually accessible by electronic means or otherwise.

The level of creation of the collections and databases must result from the selection or the combination of their elements. Let's do this at one brief example To illustrate: The works of William Shakespeare were originally copyrighted; in the meantime they are in the public domain - due to the expiry of the term of protection, i.e. anyone can use them as they wish. Nevertheless, a certain degree of caution is required, because: A collection of his works can be protected by copyright regardless of this - provided that the selection or arrangement of its elements represents a personal intellectual creation.
For example, you can assume that a collection called "My Favorite Works by William Shakespeare" because of you individual selection Copyright protection is enjoyed (especially if it contains lesser-known works by the author; this also applies if the compilation appears arbitrary to you at first glance).
On the other hand, a collection entitled “All the Works of William Shakespeare” would probably not be protected by copyright because of the selection of its elements. But you can still due to the special compilation of the works included enjoy copyright protection. A chronological or alphabetical compilation will probably not be sufficient for this; however, a thematic / content-related / or similar arrangement of the works in the collection is made, which reveals a personal spiritual creation (e.g. classification of the works according to topics such as “love”, “hate”, “war”, ...) to assume copyright protection of the collection with a high degree of probability.

Note: The existing copyright on the collection (!) Has no effect on the copyright that exists on its elements. In particular, the copyright in the collection does not in any way prevent the use of the original works; even if you have taken “Hamlet” or “Romeo and Juliet” from a collection, you may use the works without the consent of the person who created the collection (and because “Hamlet” or “Romeo and Juliet” because of expiry of the term of protection are in the public domain, even without the consent of the original author William Shakespeare; this means for you: You do not need to obtain consent at all before using the “Hamlet”).
You only need the consent of the person who created the collection if you want to use the collection as a whole in your individual selection and compilation. Because it is precisely the selection and the combination of the elements that make up the “personal spiritual creation” for which the author is granted the copyright.

SO ATTENTION: Before using works from a collection, check carefully whether

  1. Copyrights to the respective work exist yourself (then you may not use the work without the consent of the original author),
  2. the person who created the collection, Omissions / additions / notes in the original work (in which case you may not use the work without the consent of this person) and
  3. really only the individual work or at least one Extract from the collection - mainly because of the individual composition of the elements - is used (then you may need the consent of the author and the person who compiled the collection to use the work).

Origin and term of protection: does the copyright have to be registered? How long does it last?

The copyright arises when the work is created. There is no need for registration or publication. The widespread copyright symbol also has no effect on the copyright status of a work.

When does copyright end? Every work protected by copyright has a certain term of protection, after which the authors and other rights holders lose the exclusive exploitation rights to the material and the work becomes common property.

In most cases and in most jurisdictions (including the United States and all EU member states since Directive on the harmonization of the term of protection of copyright 1993 (93/98 / EEC)) is the term of protection 70 years after the author's deathregardless of when the work was created. After that, the work can be freely used by everyone (although moral rights must be respected - this never expires). Exceptions to this rule are possible (see §§ 65, 66, 70, 71 UrhG).

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