2.1.4 Drafts, titles and parts of works

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Drafts, titles and parts of works, insofar as they are intellectual creations with an individual character, are also protected pursuant to Art. 2 para. 4 CopA. This means that manuscripts and sketches in particular can also be protected works within the meaning of the Copyright Act.

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Copyright protection of metadata

When we think of copyright protection, books, images and artwork firstly spring to mind. However, in libraries, museums, archives, galleries but also in databases, book and art shops and other places where works are collected, stored, made available or sold, information about these works must be collected so that they can be identified, described and classified (e.g. in library or museum catalogues). Such data is known as metadata. The most well-known example is bibliographical information about a book, i.e. the information which is necessary to describe a book or a source of literature (e.g. publisher, title, publication year, ISBN, edition).

At first glance, it is not obvious that metadata can also be protected by copyright, as it seems that it only includes descriptions, numbers and data. Nevertheless, this has to be considered carefully as metadata can also be protected by copyright. However, it can be difficult to evaluate this aspect in individual cases. According to the copyright definition of a work (Art. 2 para. 1 CopA), we need to ask whether the information in question can be viewed as an intellectual creative effort with an individual character.

That is often not the case for:

  • book or work titles; (a title alone, separated from the work which it describes, is not usually protected by copyright because the combination of several words does not show any individuality),
  • lists and registers (e.g. literature and abbreviation list),
  • descriptions which are merely formal without any creative content (e.g. a description of an image),
  • common or standardised words or terms (e.g. ISBN),
  • dates, editions, publication years.

On the other hand, the following can be protected by copyright:

  • (short) summaries of the content in question, if they themselves can be viewed as an intellectual creative effort with individual character,
  • reviews and content analyses,
  • tables of contents of scientific works when they are the manifestation of a creative effort with individual character,
  • biographical data of artists, authors, etc., if it is collected and listed in a creative manner (e.g. as a short text) and not already in the public domain and put together in common patterns (e.g. chronologically).

But please note: these examples are only designed to promote better understanding. In individual cases, one of the unprotected metadata types listed here can also be protected, and vice versa. Finally, it depends whether you can speak of an intellectual creative or individual effort, or not. Several good examples can be found in the article of Paul Klimpel “Eigentum an Metadaten” (from: Handbuch Kulturportale, Online-Angebote aus Kultur und Wissenschaft, Berlin/Boston 2015)

Incomplete or unfinished works

A work must not necessarily be completed or whole to enjoy copyright protection. Copyright law does not differentiate between finished and unfinished works. It is only important that the unfinished or incomplete work can already be viewed as an intellectual creation with individual character which is perceptible to the senses (work conditions) (Art. 2 para. 1 CopA). If these work conditions exist, the protection begins when the work is created. It is irrelevant whether the creator of the work changes the work, extends it, changes it or adapts it in any other way, etc. – but the work conditions must exist at every stage of the creation of the work.

FAQ

2.1.4-2 A PhD student has only written the introduction to her thesis to date. May a lecturer publish this without further ado?

No, unfinished works (in this case, the introduction) can also be protected by copyright, even if the work is still in the initial stages. There is a certain creative, individual effort even in an introduction as the author explains their idea and motivation in their own words.Furthermore, only the PhD student may exploit her right to first publication pursuant to Art. 9 para. 2 CopA. This is the moral right of the author and can also not be transferred to the lecturer.

2.1.4-4 A lecturer compiles a literature list for her students containing the author, title, edition, ISBN, etc. and a short description of each book devised by the publishing house. May the lecturer use this information without further ado?

It depends: all data is metadata, which is only protected by copyright when it is considered to be an intellectual creative effort with an individual character pursuant to Art. 2 para. 1 CopA. Information about the author, title, edition and ISBN does not fall under this. On the other hand, the short description is an intellectual creative effort and is therefore protected by copyright; the lecturer would have to obtain the consent of the publishing house to use it.

Although this work is used in an educational context, the lecturer can invoke the limiting provision specified in Art. 19 para. 1 (b) CopA and does not require any consent to do so (private use for educational purposes). However, it is important that the lecturer only uses excerpts from the short descriptions for the literature list (not a complete copy) Art. 19 para. 1 (b) in conjunction with Art. 19 para 3 (a) CopA).Alternatively, the lecturer can also just issue a link list with links to the choice of literature in question or to the homepage of the publishing house instead of a literature list. Then the lecturer does not require the consent of the publishing house

2.1.4-5 Is a table of contents of a legal commentary which simply follows the structure of the Copyright Act protected by copyright? What about a legal thesis following the author’s structure and arrangement of the content?

A table of contents only falls under copyright when it can be viewed as an intellectual creation with sufficient individuality pursuant to Art. 2 para. 1 CopA. As the structure of the Copyright Act is followed in the legal commentary, it lacks the required individuality; the table of contents is not sufficiently unique and creative.The situation is different for the table of contents of the thesis. In this case, the contents of the work are structured in a form which does not exist, so the table of contents is considered to be a creative effort of the author.