On 31 May 2016, the Regional Court of Berlin (15 O 428/15) ruled that photographs of public
domain paintings are, in principle, protected by a
copyright-related right in section 72 of the German Copyright Act.
The case involved a request to take down several pictures hosted on
Wikimedia Commons as public domain images that had been taken by a
photographer employed by the Reiss Engelhorn Museum in Mannheim,
Germany. Responding to the judgment, the Wikimedia Foundation and
Wikimedia Germany wrote that the decision did not pay adequate
attention to the long-term damage this judgment represents to
accessing public domain works.
The Wikimedia Foundation already announced its plans to appeal
the case to the next level of appellate court—the
Kammergericht Berlin—and, if necessary, to take it all the
way to the Federal Court of Justice.
Facts of the Case
In October 2015, the Reiss Engelhorn Museum filed a lawsuit in
the Regional Court of Berlin against the Wikimedia Foundation and
Wikimedia Germany. The suit concerned copyright claims related to
17 photographs of works of art on display at the museum. The
photographs were commissioned by the museum and were later uploaded
to Wikimedia Commons—an online database of works distributed
under creative commons licenses—by a third party. The
paintings, portraits and other works of art at issue are all in the
public domain. For example, a famous portrait of Richard Wagner was
painted in 1862. Thus, its copyright term ran out long ago.
Key Legal Considerations
The Regional Court of Berlin found that the photographic
reproductions in question do not qualify for copyright protection
because the creative leeway of the photographer was restricted by
his employer, the museum. The photographer's task was simply to
reproduce the works of art as faithfully as possible. Thus, the
photographic process did not allow for creative choices and
individual arrangements and was merely guided by technical, not
However, in Germany, the protection granted to photographs is
not just limited to copyright ("photographic works",
section 2 para. 1 No. 5 of the German Copyright Act). Photographs
can also obtain protection under a so-called copyright-related
right in section 72 of the German Copyright Act that would require
no creativity on the photographer's part. But the scope of
protection conferred by this related right is essentially
equivalent to copyright, albeit with a shorter term.
While acknowledging that protection does not apply to mere scans
or other photomechanical reproductions, the court found that the
photographs in question are protected by that section 72 right. The
photographs were the outcomes of difficult technical preconditions
such as, inter alia, light, distance, angle and focus and,
therefore, worthy of protection.
Originally published on July 8, 2016
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On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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