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OLG Zweibrücken bolsters copyright vis-à-vis public authorities

According to a ruling of the Oberlandesgericht (OLG) Zweibrücken, the Higher Regional Court of Zweibrücken, from February 28, 2019, public authorities must not publish works protected by copyright without the approval of the creator (Az.: 4 U 37/18).

With this ruling, the Oberlandesgericht Zweibrücken has strengthened copyright law. We at the commercial law firm GRP Rainer Rechtsanwälte can report that a public authority must not publish a work protected by copyright without obtaining the approval of the creator. The OLG Zweibrücken clarified that copyright protection enjoyed by a personal work shall only be suspended due to a public interest in information if the owner of the exclusive usage rights approves the work being used in connection with what is referred to as an “amtliches Werk” (official work).

A municipality had published the extract of a map on its website pursuant to building regulations in order to meets its information obligations with respect to the general public. The operator of a city map service with the exclusive usage rights to the map under copyright law brought an action against this. The plaintiff provides online maps, including for cities. Users can have specific map extracts displayed free of charge or obtain appropriate licenses for any use above and beyond this, including, in particular, for publishing parts of maps on websites.

The defendant company had neither requested nor received such a right of use. Moreover, it did not accept an offer to conclude a licensing agreement. For this reason, the city map service ultimately sued for an injunction. The Landgericht (regional court) dismissed the claim. In doing so, it attached greater importance to the general public’s interest in disclosure than copyright protection.

Yet this ruling was later overturned by the OLG Zweibrücken. It held that the Landgericht was correct in its assessment that the map extract enjoyed copyright protection as an image of a scientific and technical nature, since it represented a personal intellectual creation. The plaintiff was entitled as the owner of the exclusive usage rights to the map to bring an action for an injunction, as its right to make the work publicly available had been infringed. The Court went on to state that copyright protection was not excluded pursuant to sec. 5 of the German Copyright Act (Urheberrechtsgesetz, UrhG). This provision provides that official works do not enjoy copyright protection. The map extract was found not to be an official work by the OLG, which ruled that it had not been originally produced for official purposes and, accordingly, enjoyed copyright protection. The Court held that this could not be subsequently changed and the personal creator “expropriated” to bring about a royalty-free compulsory license.

Lawyers experienced in the field of IP law can advise on matters relating to copyright.

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