Criteria for the level of creation
Section 2 (2) of the Copyright Act refers to so-called “personal intellectual creations”. A work fulfills these criteria if it:
- has a perceptible form (e.g. music, writing, film, image, choreography),
- is a personal creation (not exclusively created by machines¹),
- has an intellectual content (missing in the case of pure craftsmanship) and
- has individuality (peculiarity, originality)
¹Nowadays, entire works of art, novels etc. are created exclusively by artificial intelligence. Against the background of the clear regulation in Section 2 (2) UrhG, the question of authorship of such works arises. You can find an interesting article on this topic here.
There is no clear definition
The term “level of creation” is an undefined legal term. This means that there is no clear definition of the level of creation. Rather, it is up to the courts to interpret the term on a case-by-case basis.
The term “creation” is generally associated with a creative process that has a certain level of design, a quality content (see Thoms, Der urheberrechtliche Schutz der kleinen Münze, 1980, 246 ff.). One usually only speaks of a creation if something unprecedented is created (Schulze/Dreier/Schultze, 6th edition, § 2 para. 16). The work must be distinguishable from previously existing works and must also be special. This very subjective approach becomes somewhat more objective when certain indications are taken into account. For example, the judgment of the respective professional community, the success of the work (e.g. a piece of music), the complexity (e.g. in the case of computer programs), the first impression of the work, its uniqueness, etc. can speak for the protectability of a work.
In contrast, the effort, costs, time invested and the quality and quantity of a work play no role in the assessment of the level of creation.
The lowest limit of the level of creation
It is generally recognized that works of art, music and language are protected by copyright law as so-called “small coins”. The small coin determines the lowest limit of works that can still be protected by copyright. Such works have little individuality and stand out only slightly from the everyday, the ordinary, the banal (e.g. simple recipe collections, jingles, simple computer programs).
Rule of thumb
Assume that the work you are using is subject to copyright and do not use it without the permission of the copyright holder, unless it is obviously something very simple and trivial.