Every now and then the question arises in court if websites are protected under copyright law. Website technology is progressing and so time and again new aspects have to be considered by the courts. Recently, the Higher Regional Court of Hamburg ruled on a case of alleged plagiarism of a website that was based on the Open Source Content Management System “Typo 3” (OLG Hamburg, decision of February 29, 2012, ref. 5 U 10/10).
To start with, the court found that the website at issue was not protected by software copyright. In this context, it should be noted that other German courts had ruled that pure HTML code is not protected as a computer program because the code serves only to describe the look of the website but does not contain functionalities. In the present case the situation was, however, different, as the software the defendant had allegedly copied had more components, in particular Typo 3-based parts. But the plaintiff nevertheless lost its case because of its failure to show that its software was not completely trivial. This is rather strange since the non-triviality threshold in Germany is very low, and you thus don’t need much explanation for showing that your software merits protection.
Anyway, since the judges found that the plaintiff had not produced sufficient evidence for the protectability of its software developments, they did not need to consider any further aspects that could have played a role in other circumstances. For example, Typo 3 is licensed under the GPL, version 2, and it would have been intriguing to see the court’s analysis of the extent to which the derivative work provisions of the GPL apply to the copying of an individual website including Typo 3.
Regarding the issue whether the website could benefit from protection as another work type, the court held that as far as the website could be seen as a multi-media work (the court also discussed the categories of literary works and illustrations of a scientific or technical nature), the website would be a piece of merely decorative (applied) art so that the protection threshold would be higher than for other works. The court argued that under German law a higher level of creativity was needed for the protection of works belonging to the realms of applied arts. The basic idea underlying the court’s reasoning is that decorative works, such as product designs and website designs, are susceptible to protection as designs under German or EU design laws, and therefore the protection threshold could for such work not be as low as for other work types. If you wonder, whether this is compatible with the CJEU’s view expressed in the case Infopaq v DDF, my answer would be: No – but the German courts still haven’t changed their traditional point of view in this regard.
In the case at hand, the website design had not been registered as a design with the German or EU authorities. Thus, only the unregistered EU Design could have been of use for the plaintiff. This unregistered design provides basically the same protection as the registered EU Design but only for a period of three years from the date when the design was first made available to the public within the territory of the EU. However, the Higher Regional Court of Hamburg apparently did not consider the possibility that the website content and design may be protected as an unregistered EU Design.
Back to the copyright issue, this part of the action failed – like the software copyright allegations – mainly because the plaintiff did not produce sufficient evidence for the protectability of its website. Apparently, the plaintiff did not even manage to provide detailed information on the scale the website developer relied on the simple use of pre-existing development and design tools and to what extent the design was the product of the website developer’s own creativity, as required by the court. Looks to me like a typical case of a plaintiff who hadn’t done its homework …