Copyright protection for technical articles in computer journals?

The Higher Regional Court (OLG) Düsseldorf had to decide whether the adoption of two identical text passages from a product description constitutes a copyright infringement which the user must cease.

A journalist sought to prevent the identical adoption of two text passages from a product description of software on a website of the software manufacturer by means of a copyright cease-and-desist letter and a demand for a declaration of non-infringement, which passages the journalist had authored as part of an article in a computer journal. The software manufacturer had used the following passages:

"The Windows application Explorer by S. (price approximately 1300 Mark) is a very easy-to-use, image-oriented authoring system."
The potential applications range from presentation to training: parts of an image captured with the David card or Screen Machine are defined as buttons for calling up the next digitised image. Interactive applications can thus be realised, for example, in the manner of exploded drawings.

In the view of the software manufacturer, the text used was not a copyright-protected work, since the level of creative activity required under copyright law was not achieved in the text passages. As a result, copyright law did not stand in the way of the use of this product description.

In first instance, the Regional Court (LG) Düsseldorf ruled in favour of the software manufacturer, whereupon the journalist filed an appeal with the Higher Regional Court (OLG) Düsseldorf..

Decision of the Court

By means ofJudgment of 25.06.2002 – Az. I-20 U 144/01the Higher Regional Court (OLG) Düsseldorf decided that the product descriptions of the journalist could not be qualified as copyright-protected works due to the lack of the required level of creative activity.

The general principles for literary works apply to the copyright protectability of a journal article, whereby the article in question must be assessed according to the criteria developed for functional texts. Therefore, copyright protection is granted only if the texts clearly exceed the ordinary and craftsman-like. In doing so, only the text passages used must be assessed in themselves. According to the decision of the OLG Düsseldorf, the present text passages did not constitute an intellectual creation, so that the journalist had no claim for an injunction against use.

Conclusion

The assessment of the level of creative activity of literary works depends decisively on whether the text is a literary work, which under the so-called "minor works" doctrine almost always constitutes a copyright-protected work, or a functional text. For the latter, the threshold for achieving the quality of a work is higher, so that this depends on the specific circumstances of the individual case and requires legal examination.