Take-Aways (AI)
- Copyright concept: Only creative natural persons are original authors; employers and legal entities can only acquire rights derivatively.
- Individuality requirement: The ability to create a work presupposes an individual intellectual creation, not merely banal, logically predetermined compilations.
- Examination documents: Tasks and image compositions lack individuality if they result exclusively from legal standards and common everyday situations.
- UWG Art. 5 lit. c: Protection only applies to the adoption of marketable work results without the infringer’s own reasonable development effort.
Decision of the HGer BE of June 17, 2015, HG 15 39:
- Art. 6, 9 and 16 para. 1 URG: concept of the author; creator principle; active legitimation
- Employers or legal entities that are not creators cannot acquire copyrights originally, but only derivatively, for which appropriate proof must be provided (E. 17).
- Art. 2 para. 1 URG: Concept of work; individuality of intellectual creation
- The individuality of a work is to be denied if it is a banal composition predetermined by factual logic without individual character (see BGE 134 III 166, E. 2.5 p. 173). In the case of examination questions and the corresponding picture compositions, the individuality of the intellectual creation is therefore to be denied if the examination tasks result solely from legal norms and everyday situations regulated therein, do not possess any statistical uniqueness and thus do not stand out from the logical or usual (E. 18).
- Art. 5 lit. c UWG: Exploitation of third party services; work result ready for the market
- The application of Art. 5 lit. c UCA requires proof that the potential infringer has reproduced a marketable product without reasonable own effort. Only conduct is covered which aims not only to imitate a competitor’s product, but to directly adopt the result without own development effort (cf. BGE 131 III 384, E. 4.1 p. 389; E. 21).