N. 28, July - August 2006 
IP & RTD: Articles 

"Kleine Münze" in copyright


Prof. dr hab. Janusz Barta
Prof. dr hab. Ryszard Markiewicz
Directors of Intellectual Property Law Institute of the Jagiellonian University
 
The first copyright laws were issued in order to protect the legitimate interests of authors of literary, plastic and musical works, and stimulate artistic creation.

The legislators were most interested in original and significant achievements in various fields of art. Quite soon, however, it became clear that scientific works also began to be regarded objects that should be protected. In copyright, the scientific aspect, as well as the related technical aspect, came to the fore alongside the artistic one. As early as 1870, the German law on copyright to literary works, drawings, musical compositions and dramatic works emphasized that: 'Regulations applicable to literary works apply to geographical, topographical, scientific, architectural, technical and other drawings (illustrations), which, in respect of their main purpose, should not be considered as works of art"1 (the emphasis is ours).

National laws and international conventions extended the loose definition of works of applied art, as well as maps. The artist's focus on functionality (the utility aspect) of an object was no longer grounds for excluding the resulting work from copyright protection.

Judicial decisions and doctrine also had a significant impact on the extension of the scope of application and the significance of copyright. Not without some exceptions and doubts (which, among other things, arose from the doctrine of de minimis non curat praetor), they brought about the relaxation of protection criteria, such as creativity, originality, and individual character. Consequently, more and more often the proverbial "kleine Münze" (small coins) were considered suitable for protection. The expression comes from German, and we think that it emphasises the fact that small coins also have their value and should be appreciated. This approach is reflected by the fact that even a small amount of creative input (originality or individual character) is sufficient to obtain copyright protection. Thus graphic trade and service marks, packaging designs, advertising slogans, numerous industrial designs, leaflets, user guides, technical drawings, document models, or official forms are considered by the ad casu courts as deserving copyright protection.

With the above approach and its practical consequences, what should an entrepreneur take into consideration?

On the one hand, one has to be aware of the possibility that it will often be difficult to decide in advance whether, in the case of a dispute, the court will grant copyright protection to someone's (employee's or contractor's) work. At the same time, such a possibility is often ignored or overlooked and, as a consequence, copyright issues are omitted in agreements signed with authors of advertising posters or graphic packaging designs, for example. They, in turn, may refer to the effective copyright protection they enjoy, demanding a suspension of the advertising campaign or withdrawal from the market of goods sold in the package they designed. It is reasonable then, in the event of doubts, always to take ('just in case') account of an author's economic and moral rights in the agreements whose subject matter may be a product protected by copyright.

On the other hand, the entrepreneur strengthens his position in the market by obtaining copyright on literary works or artistic materials that are used in the manufacture of products or advertising. Copyright gives one a competitive edge. Through the application of those rights, the registration of a similar trade mark or a similar industrial design can be stopped, and the use by another company of a technical drawing or instructions in their own production or marketing can be objected to. Directive 2001/29/EC of the European Parliament and the Council of 22nd May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society provided an exception in this respect. The directive approves a national law that would allow the use of the protected works in relation to exhibition or product repair.





1. The 1895 Austrian law on copyright to literary works, art and photography expresses a similar idea. («)