The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for copyright law, among other things, has ruled that educational games can be protected by copyright as representations of a scientific nature under Section 2(1) No. 7 UrhG.
The applicant develops and distributes educational games consisting of several exercise books and a control device. The educational games are offered in three variants which are based on the same game idea. The control unit of one of the educational games consists of a flat plastic box in which twelve square tiles are placed in two rows of six tiles each on designated fields. The tiles are numbered from one to twelve on the front and have red, blue or green colour patterns on the back. The user's task is to assign the tiles to a certain field according to the task in the exercise book. If the user has solved the task correctly, he or she can recognise this by turning the control device over and seeing that the backs of the tiles form a harmonious pattern that is shown in the exercise book for checking purposes.
The defendant has produced and distributed educational games that function largely according to the same principle as the plaintiff's educational games. The plaintiff is of the opinion that the defendant has thereby infringed the copyright to its educational games. It is claiming injunctive relief and damages against the defendant.
The district court upheld the action. The court of appeal dismissed the action. In response to the plaintiff's appeal, the Federal Supreme Court overturned the court's decision and referred the case back to the court of appeal for a new hearing and decision.
According to the Federal Court of Justice, the plaintiff's educational games can be protected by copyright as representations of a scientific nature under Section 2 (1) no. 7 UrhG. For representations of a scientific nature, it is conceptually essential that they serve to convey instructional or teaching information. The control devices, in combination with the exercise books, convey such information. Even the presentation of the simplest "scientific" knowledge can be protected by copyright. The Court of Appeal assumed that copyright infringement was excluded because the contents and tasks of the defendant's exercise books differed from those of the plaintiff. In the opinion of the Federal Court of Justice, copyright infringement cannot be denied on this basis. For copyright protection of a presentation of a scientific nature, the content presented is irrelevant. It does not matter what is depicted, but how it is depicted. Only the form of the representation can justify its copyright protection.
The court of appeal will therefore have to examine whether the plaintiff's educational games have such a peculiar design that they enjoy copyright protection as representations of a scientific nature. For this, it is sufficient that the design stands out from everyday creation in the field of educational games concerned, even if the degree of intellectual achievement and individual character is low. However, if the plaintiff's educational games have only a low degree of originality, even relatively minor deviations in the design of the defendant's educational games could result in no copyright infringement. This, too, will have to be examined by the court of appeal, if necessary.
Judgment of the Federal Court of Justice of 1 June 2011 - I ZR 140/09 - Learning games
Lower courts:
Cologne Regional Court - Judgment of 3 December 2008 - 28 O 483/06
OLG Cologne - Judgment of 28 August 2009 - 6 U 225/08, GRUR-RR 2010, 147 = ZUM 2010, 176
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
