Wednesday, 2 November 2011

Pearl Diving At Your Own Risk

Actual Pearls
Cultural Pearl
The Higher Regional Court of Frankfurt am Main (OLG Frankfurt) has been keeping busy of late. It has not only had to deal with the umpteenth instalment of the bunny wars (for those interested in trade mark law and/or chocolate, see Birgit's IPKat post here), but with copyright issues as well. Almost a year ago, I reported on the 'Perlentaucher' ('pearl divers') decision by the Federal Supreme Court (BGH) (see my earlier post here), concerning abstracts of book reviews and whether such abstracts constitute free use of the original review (section 24 German Copyright Act) or an infringement. The BGH reversed and remanded the case to the OLG Frankfurt after giving some general guidance and reminding all concerned about that old copyright favourite, the idea/expression dichotomy.

In a rare press statement (here), the OLG Frankfurt announced that it partly allowed the claimants' appeal (a change of heart, see its 2007 judgment in the same case here). It held that some of the abstracts were indeed infringements in the form of 'unfree' adaptations of the original reviews because they more or less consisted of especially distinctive and expressive passages from the original reviews, only omitting a few sentences.

The court's press office was quick to state that no general conclusions can be drawn from the case, but that the extent to which a book review may be freely copied or adapted is a matter of fact and degree in each individual case. Since that is certainly correct but not very helpful, I shall take a look at the judgment once it becomes available and let you know if it contains any hidden pearls of wisdom...

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