Copyright in General Terms and Conditions?

Are General Terms and Conditions always copyrighted works created by lawyers, or do Terms and Conditions enjoy no copyright protection? This legal question had to be decided by the Local Court (AG) Kassel in a case in which a lawyer sued a shop operator for an injunction and damages.

A lawyer issued a cease-and-desist letter to the operator of an online shop because the latter was using General Terms and Conditions which the lawyer had drafted for a client. He asserted copyright claims against the operation for an injunction and the payment of a licence damages claim. The lawyer did not explain how he had created the disputed General Terms and Conditions. He merely stated that since 2006 he had repeatedly drafted and adapted General Terms and Conditions for several clients.

The shop operator did not submit a declaration of non-infringement and allowed the matter to proceed to court proceedings.

Decision of the Court

The Local Court (AG) Kassel ruled in favour of the entrepreneur withjudgment of 05.02.2015 – Az. 410 C 5684/13 – and dismissed the lawyer's action. He had failed to explain, despite judicial notice, how he had created the General Terms and Conditions.

General Terms and Conditions cannot generally be regarded as an individual intellectual creation of a single lawyer, because they can be traced back to previously published relevant collections in form books or comparable publications, or have been taken from concrete articles and court decisions that are generally accessible to the profession. In order to be able to assess the specific own creative performance, there is therefore a need for a detailed explanation of the extent to which such templates were used and to what extent alternative independent reformulations were incorporated. Only then can it be assessed whether the creation of the General Terms and Conditions resulted in a work capable of copyright protection.

Conclusion

General Terms and Conditions are as a rule complex contracts which enjoy copyright protection. However, General Terms and Conditions are not automatically copyrighted works. The creation of a copyrighted work always requires a personal intellectual creation by the author. If the lawyer merely makes a slight adaptation of a pre-existing template of a third party, in case of doubt he cannot assert his own rights.