Copyrights in connection with expert technical opinions

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For an expert technical opinion to be eligible for copyright protection, it needs to comply with strict requirements. That was the finding of Düsseldorf’s regional court – the Landgericht (LG) Düsseldorf – in a ruling from February 9, 2022 (case ref.: 12 O 114/21).

Section 2(1) no. 7 of the German Copyright Act (UrhG) stipulates that copyright protection can also be extended to illustrations of a scientific or technical nature, such as drawings, plans, sketches, tables, and three-dimensional representations, so long as the work emanates from a personal intellectual creation. However, according to the Landgericht Düsseldorf, an expert technical opinion must fulfill clearly defined criteria in order to benefit from this protection, reports commercial law firm MTR Legal Rechtsanwälte, whose practice covers copyright and the protection of industrial property.

The plaintiff in the case in question was a firm of engineering consultants that in 2018 had an expert technical opinion prepared on a particular area of wall cladding, and it was the only party that had the right to make use of the opinion. The defendant, for its part, had also submitted a professional assessment of this issue to one of Germany‘s state ministries in 2020, but it made use of the wording from the plaintiff’s opinion from 2018. The plaintiff viewed this as an infringement of its copyrights and sued for an injunction and compensation, reasoning that its professional opinion was protected by copyright because it could not have been constructed based on a predetermined formula and was instead a product of its author’s intellectual efforts. Accordingly, it ought to be considered a work of a scientific or technical nature eligible for protection in accordance with Section 2 UrhG.

This line of reasoning was not followed by the LG Düsseldorf, which ultimately dismissed the claim. It noted that since the parts of the expert opinion covered by the application did not include any drawings, copyright protection could not be invoked here pursuant to Section 2(1) no. 7 UrhG. It also didn’t meet the criteria for a literary work as per Section 2(1) no. 1 UrhG.

The court went on to state that for something to be classified as a work, it needs to be a personal intellectual creation of the author. To this end, it must also reflect the author’s personality by expressing their free creative decision. If, on the other hand, no room was left for artistic freedom because certain rules had to be followed due to technical considerations, this generally means that the necessary originality is not present to justify classification as a work.

MTR Legal Rechtsanwälte advises on matters pertaining to the protection of industrial property.

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