Copyright for Web Sites

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Can websites, layouts and pictures be protected copyright?

In Germany the copyright law (UrHG) primarily decides over contents, that can be regarded as copyright protected as a matter of principle. Hereunder falls paragraph 2 of the UrhG regarding protected work:

Paragraph 2 UrhG - Protected work

(1) Protected work [...] includes particularly:

  • 1. Literary works, such as written works, speeches and computer programs
  • 2. Musical works
  • 3. Pantomime works [...]
  • 4. Visual arts works [...]
  • 5. Photographic works [...]
  • 6. Cinematographic works [...]
  • 7. Illustrations [...] such as drawings, plans, maps, sketches, tables [...]

(2) Works in the sense of this law are only personal creations.

Quelle: UrhG Individual Standards

UrheberrechtThus the copyright law explicitly includes only "works", in which one can recognize a creative contribution. In technical terms, this is here referred to as a certain "threshold of originality". In reverse it is not sufficient to just put the content together with diligence and effort (and even it is so admirable). Instead the question about the protection through the copyright law must be clearly recognizable that something truly new - and even it is only to a small degree - was created in own efforts.

How you can easily visualize it that is the question of a sufficient threshold of originality in the definition of the copyright law which is in many cases disputable - and judicial decisions for that reason are not easily understood. For that reason it is helpful to review more closely the individual aspects and components of a website from the copyright's point of view. If available, corresponding court decisions were listed to draw conclusions about applicable interpretations of the copyright law for websites.

Copyright law for layout and the "look & feel" of a website

WebsiteThe appearance of the web presence is significantly determined by the color selection and color combination, the arrangement of particular navigations and content elements as well as individual graphic elements, such as lines, border elements and alike. Even if it appears to be unexplainable to many web designers: The pure appearance of the website does not reach - at least in the interpretation of the copyright law - required threshold of originality to enjoy the protections under the copyright law.

One of most famous decisions on the question of violating the copyright law through layout plagiarism is the decision of August 24th, 2004 of the regional court in Hamm under the case number: 4 U 51/04. A Internet service provider sued that a direct competitor adopted the website of the plaintiff nearly unchanged. Under that falls explicitly the color selection, the file name of the style sheet and the HTML pages as well as graphic design elements of the plaintiff's site, which the defendant had adopted without changes. Quote: "The copyright claims were not taken into consideration, since neither the file names or the computer program pursuant to paragraph 69 a Sec. 1 of the Copyright Law nor as a database pursuant to paragraph 4 Sec. 2 of the Copyright Law copy right protections apply. As far as the plaintiff's point of protecting the layout of her website, the plaintiff did not get through with her demand, because the website's required threshold of originality was missing. This applied to the entire website as well as the graphic in the header."

Certainly this decision cannot be inferred as a generalization that the Layout and the "look & feel" of websites do not enjoy the protection of the copyright law. Nevertheless it remains notable that a sufficient threshold of originality cannot possibly be warranted. To potentially go to an attorney should be critically questioned whether a certain creative achievement can be plausibly proven.

Copyright law for HTML source texts and CSS style sheets

HTMLHTML source texts and the forming CSS style sheets are the sources from which ultimately every website is built on. Even if the tendered description of the HTML with "Hypertext Markup Language" want to suggest: HTML is not language or not only a script language, and a HTML file is not a computer program in terms of copyright law. For this, HTML is missing the needed control structures that at best can be supplemented through active (client's side) elements such as JavaScript.

The same applies to CSS style sheets which also do not present a computer program in terms of the copyright law and for that reason are not protected under the copyright law. An assessment of CSS as a database can be taken into consideration, however, there is not (yet) an applicable court decision available.

Under this circumstance - as the numerous web designers can be possibly viewed as a loop hole - is a legal defense from plagiarized site layouts on the basis on HTML or CSS source texts difficult to hold up, so that currently an argument in reference to the (copyright protected) artistic threshold of originality of the applicable website potentially could have higher success rates.

Copyright law for the content of a website

ContentUnder the term "content" of a website should be understood in text form as the following - as in common language use - the (editorial) content of individual pages, also articles, reports, etc. The article that you are currently reading is in this context a part of the contents of PlagAware.

Generally the copyright law differentiates at this point between works that are published over the Internet and works that is being distributed through other (printed) media such as books, magazines and alike. All these works are protected according to the copyright law and with that enjoy full protection under the law - provided that the particular texts are in fact "works" in terms of the copyright law. For this purpose is - as previously mentioned - a certain threshold of originality required. The question, which form of texts this threshold of originality reaches, is a case by case decision of the applicable court and cannot be answered in general terms.

The influence on this decision, whether the text is a "work" in terms of the copyright law, possibly characterized besides the length of the text also the literary qualities through the applicable style, linguistic humor or alike. This applies even more, the shorter the appropriate texts are. Otherwise texts, which are "created by someone with average abilities through pure craftsmanship" (Terhaag, Herrmann: Online Rights - Guidebook for the Self-Employed, Data Becker, 2006), are not protected. This applies in turn for longer news texts, which the regional court of Dusseldorf in Urteil vom 25.04.2007 - Az: 12 O 194/06 determined.

Also no necessary threshold of originality reaches a normal case

  • simple description texts ("The memory card has a capacity of 4GB available"),
  • news and newsflashes ("High-tech Olympics start: The IFA started with an exhibitor record"),
  • numbers and facts,
  • advertising slogans (but: a protection as a registered trademark is possible!) as well as
  • simple design elements.

In contrast, detailed description texts, personal field reports (such as blogs / weblogs) and alike should be as a rule protected works under the copyright law.

Pictures and photographs

Pictures and photographs are at any rate "works" in the sense of the copyright law and therefore immediately deserve protection. This also applies then, if a particular picture does not appear to show any artistic degree - or in other respects - value, such as snapshots. With that pictures enjoy copyright protections, irrespective of a possible threshold of originality.
This applies by the way also to highly minimized illustrations, such as the so-called "thumbnails" or "preview pictures" on websites, as the regional court in Bielefeld in Urteil vom 08.11.2005 20 S 49/05 (Damages for copyright violation of thumbnails) determined.

The copyright notation and its meaning

In the context of the German case laws becomes the known copyright notation no meaning: Works in the sense of the copyright law is automatically copyright protected, without requiring an explicit identification through a copyright notation.

Note to the content of this page

The content of this text was thouroughly researched; however it is possible that statements are incorrect, incomplete, forged, outdated or no longer valid. The article applies to Germany, even if this is not explicitly noted. Do not use the article in any case for legal opinions. Consult an attorney or helpdesk regarding your concerns. Consider that many legal matters have statutory periods which when missed can be to your disadvantage. (Loosely based on Wikipedia: legal topics)

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