The First Civil Senate of the Federal Court of Justice (BGH), responsible inter alia for copyright law, has ruled that educational games can be protected by copyright as scientific representations under Section 2 (1) No. 7 of the German Copyright Act (UrhG).
The plaintiff develops and distributes educational games comprising several exercise booklets and a control device. These games are available in three variants, all based on the same core game concept. For instance, the control device of one such game consists of a flat plastic box housing twelve square tiles, arranged in two rows of six tiles each, on designated fields. The tiles are numbered one to twelve on their front sides and feature red, blue, or green color patterns on their reverse sides. The user's objective is to assign the tiles to specific fields according to the tasks presented in the exercise booklet. Upon correctly solving a task, the user can verify their solution by turning over the control device, where the reverse sides of the tiles will form a harmonious pattern, which is also illustrated in the exercise booklet for confirmation.
The defendant manufactured and distributed educational games that operate largely on the same principle as the plaintiff's educational games. The plaintiff asserts that the defendant thereby infringed the copyright to its educational games and is consequently seeking injunctive relief and damages from the defendant.
The Regional Court granted the claim. However, the Higher Regional Court dismissed it. Upon the plaintiff's appeal on points of law (Revision), the Federal Court of Justice overturned the appellate judgment and remitted the case to the Higher Regional Court for a new hearing and decision.
According to the BGH, the plaintiff's educational games can be protected by copyright as scientific representations under Section 2 (1) No. 7 of the German Copyright Act. It is inherent to the concept of scientific representations that they serve to convey instructive or educational information. The control devices, in conjunction with the exercise booklets, convey such information. Copyright protection can extend even to the representation of the simplest "scientific" findings. The Higher Regional Court assumed that copyright infringement was precluded because the content and tasks of the defendant's exercise booklets differed from those of the plaintiff. According to the BGH, copyright infringement cannot be denied on this basis. For copyright protection of a scientific representation, the content presented is irrelevant. It does not matter what is presented, but how it is presented. Only the form of the representation can establish its copyright protection.
The Higher Regional Court will therefore need to ascertain whether the plaintiff's educational games possess such a distinctive formal design that they qualify for copyright protection as scientific representations. For this, it is sufficient that the design distinguishes itself from commonplace creations in the relevant field of educational games, even if the level of intellectual achievement and individual character is modest. However, should the plaintiff's educational games exhibit only a low degree of distinctiveness, even relatively minor deviations in the design of the defendant's educational games could lead to a finding of no copyright infringement. The Higher Regional Court will also have to consider this, if applicable.
BGH Judgment of June 1, 2011 – I ZR 140/09 – Educational Games
Lower Courts:
Cologne Regional Court – Judgment of December 3, 2008 – 28 O 483/06
Cologne Higher Regional Court – Judgment of august 28, 2009 – 6 U 225/08, GRUR-RR 2010, 147 = ZUM 2010, 176
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2011
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Lawyer for Information Technology Law (IT Law)
Email: info@goldberg.de
