Copyright Protection of Products in Germany

Products can be protected by German copyright law per § 2 German Copyright Act (UrhG). However, the product must represent a personal intellectual creation and have a certain depth of design or originality. According to case law, a personal intellectual creation must be an individual creation that has a perceptible design, intellectual content and creative originality. It must be created by a human being, be perceptible to human senses and have a mental and emotional content. Creative originality can be assumed if the product stands out due to its individual design in such a way that the required level of creation is achieved within the scope of the design. Therefore, a product worthy of copyright protection can be anything that contains creative elements that go beyond the purely functional. Thus, everyday products such as furniture or packaging can also be protected by copyright as works of applied art (§ 2 (1) no. 4 UrhG).

For instance, industrial property rights for products can be found in the German Design Act, Trade Mark Act, or Patent Act. Which industrial property right is applicable in an individual case depends on which product is to be protected. In contrast to most other industrial property rights, copyright arises from the creative creation process and does not require entry in a register.

An originator’s exploitation rights are regulated in §§ 15 to 23 of the German Copyright Act (UrhG). They secure the originator the economic utilisation of his work. According to § 15 UrhG, the originator has the exclusive right to exploit his work in both physical and non-physical form.

Physical rights of use:

The right of use in physical form includes:

• Reproduction rights (§ 16 UrhG): the right to make copies of the work,
• Distribution rights (§ 17 UrhG): the right to offer, sell or give away copies of the work to the public,
• Exhibition rights (§ 18 UrhG): the right to exhibit the work publicly.

Incorporeal rights of use – exclusive rights of use:

The exclusive right to incorporeal use includes:

• Lecture, performance and presentation rights (§ 19 UrhG),
• The right to make the work available to the public (§ 19a UrhG), for example, via the Internet,
• Broadcasting rights (§ 20 UrhG),
• the right of reproduction through image and sound carriers (§ 21 UrhG),
• the right of reproduction of radio programmes (§ 22 UrhG).

These comprehensive rights of use ensure that the author retains control over the commercial use of his work and can profit from its utilisation.

As soon as a copyright infringement becomes evident, we take decisive action against it. The first step is to collect evidence, such as screenshots of adverts, the counterfeit product itself or other advertising. We then contact the party responsible for the infringement. Legal steps that can now be taken against the infringer include sending a warning letter and claiming damages. It should be noted that compliance with the formal requirements of a warning letter is of the utmost importance. According to § 97a (2) sentence 2 UrhG, the warning is otherwise ineffective, and the person being warned may be able to claim compensation for their legal fees – regardless of whether a copyright infringement has actually occurred. Our legal team is familiar with the formal requirements and will draft a legally compliant warning letter for you.

If out-of-court measures are ineffective, we will not hesitate to apply to the court for an interim injunction and assert your other claims through a lawsuit. There are also options to take platform-related measures, such as reporting to search engines such as Google or popular social media portals.

Our lawyers can also advise you on how to prevent future infringements by monitoring and optimising protection strategies.

Products that may be subject to copyright protection should also be protected as quickly as possible by registration in the official German design register. Rapid registration is essential, since in design law, as in trademark law, the earlier application counts, and it is therefore clear from the outset that you are the owner of the property right. According to § 2 (1) of the German Design Act (DesignG), the prerequisite for this is that the product is new and has individual character at the time of application. Our attorneys will check whether your product is registrable and, if necessary, apply for registration at the German Patent and Trade Mark Office (DPMA) and the European Union Intellectual Property Office (EUIPO) on your behalf.

The scope and protective effect of copyright law in Germany is far-reaching and advantageous for product manufacturers. Making the best possible use of these effects is not only beneficial in terms of property rights. It can protect the creator’s identity, reputation and control over their product. Therefore, it is all the more important to commission experienced lawyers to advise you on German copyright law to ensure that your products are optimally protected and always legally safe.