The question of how to deal with works that promote hate has resurfaced after Hitler’s Mein Kampf and Josef Goebbels’ diaries entered the public domain in the beginning of 2015. While copyright still subsisted in these works, it was applied in two contrasting ways: on the one hand, it was applied as a tool to restrict access and dissemination, as with Mein Kampf, but was applied to generate income, as seen with respect to the Goebbels diaries, on the other. The chapter will trace the publishing history of Hitler’s Mein Kampf and how copyright law was applied in the different stages. It will then contrast this to the fate of Josef Goebbels’ diaries. After this historical account, it will look at how copyright law applies to such works more generally and address other regulatory responses, such as criminal law. Finally, it will assess the suitability of copyright to regulate these forms of works.
Marc D. Mimler
The impact of 3D printing on business models that are based on protection by design rights and copyright has been widely acknowledged. Since the technology is rapidly developing, its effects may also be felt within industries that rely on patent protection. This chapter traces how the law of patent infringement in the United Kingdom applies to 3D printing scenarios. It analyses the different stages of 3D printing and whether these may lead to direct and indirect infringement. It also sheds light on how exceptions to patent infringement currently apply to 3D printing. The chapter concludes that the law of patents in the UK is currently better equipped to deal with impact of 3D printing technology than other intellectual property rights but argues for interpretive clarifications by the courts as well as possible legislative action in the near future.
‘Metall auf Metall’ – the German Federal Constitutional Court discusses the permissibility of sampling music tracks
Bunderverfassungsgericht BVerfG 1 BvR 1585/13 – ‘Metall auf Metall’
Marc D Mimler
The German Federal Constitutional Court has delivered an important decision with regards to the permissibility of sampling which is widely used in hip hop and electronic music. With this decision, the Court ended a dispute that has been ongoing for almost twenty years. Furthermore, the Court has applied a fundamental rights discourse between the countervailing rights of the original authors and those of the new works using samples from the original works. The preceding courts found that sampling would constitute an infringement of the phonogram producer rights (Section 85 of the German Author's Rights Act) where the samples could have been created independently. The German Constitutional Court, however, disagreed: by holding that sampling was a form of art protected by the fundamental right of artistic freedom and may outweigh the exploitation interest of the phonogram producer, which would only be impaired to a minimal extent by sampling.
Oberlandesgericht Düsseldorf, Urteil vom 31.01.2012, I-20 U 175/11, Landgericht Düsseldorf, Urteil vom 09.02.2012, 14c O 292/11 and Oberlandesgericht Düsseldorf, Urteil vom 24.07.2012, 20 U 35/12
Marc D Mimler
The litigation between Apple and Samsung on alleged infringement of intellectual property (IP) rights has reached a global scale. Apart from issues relating to patent infringement the litigation also concerned whether Samsung's tablet computers would infringe Apple's iPad design. In Germany, the courts of Düsseldorf were called to decide on these issues.
The Higher Court of Düsseldorf found that the Galaxy 10.1 tablet computer did not infringe a registered Community design held by Apple but was exploiting the iPad's reputation, which violates rules of unfair competition law.
Samsung then modified the design and intended to market this 10.1N version of the Galaxy tablet. Apple again took action but neither the Regional Court nor the appeal to the Higher Regional Court found the redesigned version to violate unfair competition rules.