Wikilegal/Copyright of Images in German Postage Stamps

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Precedent in Civil Law

The Berlin decision in the Loriot case is only binding on the parties of the case, i.e. WMF and Loriot’s daughter, but may be predictive of how another court in Germany would interpret copyright law in the future. Precedent does not operate the same way in civil law jurisdictions, such as Germany, as it does in common law countries. Except for certain decisions from the German Federal Constitutional Court, decisions from one German court are not binding on other courts. However, the legal analysis of one court can create a powerful “practical precedent” that suggests how another court would interpret the same law. Therefore, while the Berlin decision does not prevent other courts from ruling otherwise, it does make it substantially less likely that another court would interpret the law differently.

In addition, academic legal commentary plays an important role in the German legal system. The 1987 decision of the regional court of Munich which declared stamps not subject to copyright protection was generally criticized by the academic literature. This may make it more likely that future courts will agree with the 2012 Berlin decision as opposed to the 1987 Munich decision.

Official Works Exemptions

Section 5 of the German Copyright Act provides that “official works” meeting certain criteria do not enjoy copyright protection. The Berlin decision was relatively clear that § 5(1) only applied to official texts and did not apply to images or other graphical works. Unlike § 5(1), § 5(2) includes images in its scope. Determining whether a work falls under § 5(2) may be difficult. The provision provides that “official works” published for an “official interest” with the purpose that the general public take note of the work are unprotected by copyright. Based on a German Supreme Court decision, this test will be met when a court determines “looking at the kind and meaning of the information, the official interest is specifically directed at allowing the general public to freely reproduce or otherwise make use of the work that conveys the information.” Stamps arguably do not meet these criteria because the purpose of a stamp is to pay for shipping or to enjoy as a collectible, not copy or otherwise use. Legal scholars have suggested that works such as official handouts or maps with warnings to the public, patent decisions, and official legislative materials would be covered by § 5(2). However, they doubt that works with purposes other than public dissemination would lose protection under § 5(2). Due to the limited criteria of § 5(2), it may be difficult to know definitively which works qualify under this section. If a work does not fall under either of these exemptions, the copyright protection analysis would be the same as for any other work.

As opposed to the Berlin decision, the regional court of Munich based its 1987 decision on the assumption that the stamps are governed by § 5(1) as a result of it being published in the official federal publishing organ (of the then West Germany). The fact that a stamp is arguably not an “official text” in the traditional sense did not deter the court when the court concluded that stamps should be regarded the same way (“gleichzustellen”) as official texts. Consequently, the Munich court did not apply the test of § 5 (2) and held that stamps are in the “public domain” under sec. 5 (1). It has been doubted that the Munich decision was well reasoned because arguably the wording of § 5(1) only seems to apply to “texts” in the traditional sense, and the reason given for the “Gleichstellung” (“to apply accordingly”) appeared to lead directly to an application of § 5(2) as opposed to § 5(1). This view is supported by, inter alia, the most cited commentators on German copyright law: Dreier/Schulze, UrhG, 3. ed. 2080, § 5 Rn 11; Wandtke/Bullinger, UrhG, 3. ed. 2009, § 5 Rn 20; Schricker/Loewenheim, UrhG, 4. ed. 2012, § 5 Rn 68). The Berlin court is consistent with the vast majority of the legal commentators. It appears likely that this view does not relate to, or depend on, whether or not a particular stamp was published in the official gazette of the competent ministry (pre 1995) or on a website or other publication of what is now the Deutsche Post AG as a private enterprise (post 1995). Neither the Munich court (because it applied only § 5(1)) nor the Berlin court makes any such distinction. The wording of § 5(2) essentially provides for only a double test:

• Is the work an “official work?” Stamps are since they are manufactured on order of the competent ministry and delivered to Deutsche Post AG.

• Is the official interest to publish the work specifically directed at allowing the general public to freely reproduce or otherwise make use of the work that conveys the information? This is arguably not the case for stamps for the reasons stated above.

What does not matter pursuant to the wording of the law is where the publication takes place and who controls it (even if those circumstances might be suitable to determine the “public interest” in question).

General Restrictions on Copyright

Works produced for a government purpose that do not fit the copyright exceptions in § 5 of the Copyright Act could still be unprotected under German copyright law. Copyright for all images and graphical works is subject to certain exemptions and limitations. Some factors that might lead a work to be held unprotected are difficult to prove or arguably subjective. For instance, Germany holds that copyright expires 70 years after the death of the creator. When the creator is obscure or unknown, it may be impossible to conclusively know that their work is unprotected. Similarly, there is no easy way to know in advance that a court would find a work lacks any originality or creativity. There is also an exemption for use of copyrighted works within another work akin to, but distinct from, the concept of fair use. However, whether images could be used in this manner would depend on their function in the secondary work. Accordingly, it is difficult to determine the copyright status of a work without analyzing its characteristics and how it is being used.

Conclusion

Copyright law is complex and difficult to generalize. The Berlin decision suggests that another German court may also find similar images or graphical works displayed on or contained in “official publications” (such as stamps) not to be exempted from copyright protection. Even these works would be subject to restrictions on copyright that apply to all works. Therefore, it is very difficult to establish general categories of works that are exempt from copyright protection. Everything will depend on the specific characteristics of a given work.