Defining ‚Work‘: The Threshold of Originality in German Copyright Law Explained

The ‚threshold of originality‘ is an undefined legal term, i.e. it is not defined in the legal text itself. So, how can the threshold be assessed, and when is it reached to create an intellectual product? These questions must be answered individually for each specific case. Despite these uncertainties, it is possible to establish criteria that can creators be use as a guide.

Threshold of originality in context: origin and background of the legal principle

The threshold of originality determines the necessary degree of individuality that an intellectual product must achieve in order to be considered a work. This legal concept distinguishes works protected by German copyright from works in the public domain and simple everyday products.

Such a distinction is necessary for several reasons: If an intellectual product is protected under the German Copyright Act (Urheberrechtsgesetz), the creator enjoys extensive rights. She may decide who can use and distribute the work. She may also demand remuneration for its use and exploitation. In addition, works are protected for a relatively long period: the restrictions on use and exploitation continue to apply for 70 years after the author’s death. Without the concept of authorship, facts and ideas could be monopolized.

How the Threshold of Originality is determined in the application

Whether an intellectual product reaches the Threshold of Originality depends on two conditions:

1. 1. There must be scope for creativity: What conditions must the author comply with to create her product? Does she have any leeway?
2. 2. The author must make creative use of this leeway.

Examples of fulfilling of the requirements

Here are the two conditions explained using practical examples:

The leeway: One example of a lack of leeway is the protocol for a scientific experiment. In this case, both the external form (through the structure of the protocol) and the content of the document (detailed description of the experimental procedure) are predetermined. In contrast: When writing a blog post about the experiment, the author can decide how to present the experiment and which content to leave, as well as whether she wants to include other topics in the post.

Creative use of leeway: A lack of creative use of leeway is evident when the author is solely guided by functional or technical considerations. Rather, the selection should reflect the author’s personality. This can be demonstrated using the construction of a table as an example: If the carpenter makes the table from teak wood because it is particularly weather-resistant, she has not creatively used her leeway because she was guided by functional considerations. However, if the carpenter gives the table a top made of mosaic tiles arranged artistically, and combines this with curved table legs, she has used the leeway creatively. This is because these processes express the personality of the carpenter, making the table ’special‘.

The requirements for creative use of leeway are set low. The creator only needs to reach the so-called ‘small coin’ of German copyright law. This refers to works that just barely reach the necessary threshold of originality.

Threshold of originality for each work type

Linguistic works inside and outside of science

Linguistic works are crafted from the words of a language. The technical achievement here would lie in the use of individual words. These do not yet reach the threshold of originality. The above-mentioned creative leeway exists in the composition of the words into one or more sentences and longer texts. However, if the author does not exploit this (for example by only using the standard formulations of her professional group), and if the expression is consistent with the content), the result of this work will not reach the threshold of originality, as seen in the protocol example above.

In individual cases, the ‘small coin’ (mentioned above) can lead to everyday texts such as social media posts reaching the threshold of originality.

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Musical works

The technical achievement here would be the pure tone sequence, such as a musical scale or individual chords. This is why interpreters of pop music can legally use the same four chords in their songs without committing a copyright infringement.

Combining sequences of notes or chords in such a way as to create an impression of unity leads to the threshold of originality. This can be seen in the story telling through the creative use of tempo, volume, rhythm and harmony in a pop song, for example.

The distinction between musical works and works below the threshold of originality is not always decided consistently by courts; sometimes it is assumed and sometimes it is denied, as shown by examples such as the ad jingle.

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Works of art

Architecture, painting and graphics can all fall under the concept of a work of art within the German Copyright Act. So-called applied art, i.e. the artistic representation of everyday objects, is also included. The same applies here: Not all art is a work of art. Once again, the artist must make creative use of the existing design scope and not just technical and functional use.

This was recently discussed again by the Federal Court of Justice in its ruling on the copyright protection of Birkenstock sandals.

Photographic works

The technical achievement here would be to reproduce the original as faithfully and unaltered as possible. If a photographer is commissioned by a museum to photograph its collection, bound by the museum’s specifications to faithfully and unalterably reproduce the objects, the threshold of originality is not reached.

Otherwise, the photographer can make creative use of her leeway, both when taking the photograph by arranging the objects and during post-processing by applying filters or retouching.

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Film works

Difficulties often arise in defining documentary films. If they merely document the events in front of the lens without creatively staging them through editing and selection of the material, they are not considered to be works of creation. However, the bar is sometimes set very low by the courts. For instance, broadcasting a Champions League football match can reach the threshold of originality, as the image director has sufficient scope for individual design.

Myths surrounding the threshold of originality

Because the threshold of originality is such an abstract legal concept, it is surrounded by a number of myths and prejudices.

Myth no. 1: Hard work leads to the threshold of originality.

For copyright protection, it is not important that the creator has invested a great deal of work in the creation, nor that the work was particularly intellectually demanding. The only things that matter are the existence of creative freedom and the exploitation of this freedom (mentioned above).

Myth no. 2: The longer the work, the more worthy of protection it is.

It is not necessary for the work to be of a certain length. Even short texts, such as many poems, aphorisms or even social media posts can be creative. However, the shorter the work, the less creative leeway there is.

Myth no. 3: Only works of art have creative merit.

The threshold of originality should not be confused with an award for exceptional creative talent. The threshold for copyright protection is set relatively low due to the protection of the ‘small coin’.

Myth no. 4: Different types of work have different requirements for the threshold of originality.

Historically, different types of work had different requirements for the threshold of originality. However, in the meantime, German courts – perhaps following EU Law – have adopted a uniform approach. The creative leeway available to the author does, however, differ, as illustrated.

Conclusion

In practice, the assessment of the threshold of originality is much more complicated than it is in theory. In any case, the two requirements mentioned above – the existence of leeway and the creative exploitation of this leeway – are crucial to the assessment. These requirements apply regardless of the type of work.

This text was originally published in German language. Translation by Lea Singson.

Lea Singson ist Redakteurin bei iRights.info. Sie ist ausgebildete Volljuristin und Expertin auf dem Gebiet Immaterialgüterrechte und Datenschutz. Sie ist außderdem als Wissenschaftliche Mitarbeiterin im Bereich Immaterialgüterrechte am FIZ Karlsruhe tätig.