RC Mannheim – Kather Augenstein successfully fights for protection of sensitive data also in enforcement proceedings

In a recently published decision of 13 October 2021 (ref. 2 O 73/20), the Regional Court Mannheim ruled on security measures under Sec. 145a Patent Act in conjunction with Sec. 16 et seq. Trade Secrets Protection Act in enforcement proceedings. Kather Augenstein thus succeeded for the first time in protecting sensitive client data from third parties, which would otherwise be freely accessible. This is particularly significant because information about patent-infringing products often discloses information about the profit calculation and thus the “silverware” of a company. The decision thus allows for the first time to restrict access to and exploitation of sensitive data within the patentee’s organisation.

The Regional Court Mannheim considers Sec. 145a Patent Act to be applicable to enforcement proceedings. The board justified this by stating that Sec. 145a Patent Act was decisive for determining the scope of application of Sec. 16 to 20 Trade Secrets Protection Act in patent litigation. It was therefore irrelevant that the provisions of Sec. 16 to 20 Trade Secrets Protection Act, in their original scope of application, applied only to main proceedings. The term patent litigation was to be understood broadly and would include enforcement proceedings, which, moreover, were not excluded from the scope of application in Sec. 145a Patent Act. Moreover, a possible restriction could not be inferred from the relevant explanatory memorandum to Sec. 145a Patent Act.

In contrast, it is prominently argued in the literature that Sec. 145a Patent Act does not apply to enforcement proceedings (Kühnen, Handbook of patent infringement, 14th ed. 2022, chap. D, marginal no. 117). 117). Decisions from Düsseldorf as to whether Sec. 145a Patent Act applies to enforcement proceedings are currently not known. In the lecture event “Düsseldorfer Richtergespräche”, the speakers did not comment on this. It therefore remains exciting whether Düsseldorf will follow the line from Mannheim.

In addition, the question may arise in the future as to in which cases courts will order additional measures pursuant to Sec. 19 (1) Trade Secrets Protection Act. In the present decision, the Regional Court Mannheim ordered additional measures within the framework of the required consideration. In doing so, the court referred in particular to the fact that the financial information and rendering of accounts were only for a specific purpose and therefore a restriction to the group of persons did not represent a disadvantage for the plaintiff. Only the future will show whether other courts will also take into account the purpose of the financial information and rendering of accounts. It will also be interesting to see how the interests of the parties will be weighed in the main proceedings in the future. However, the parties can avoid these questions from the outset, for example by agreeing on the restriction of persons out of court.

Carsten Plaga

“Metal on metal”, judgement on judgement: The copyright dispute between Kraftwerk and Moses Pelham

22 years, 10 judgements, all instances: Of all things, a two-second excerpt of the song “Metall auf Metall” of the band Kraftwerk triggered a long-running legal dispute that continues to this day and has significantly changed copyright law in Germany. What is it exactly about?

In the beginning, there is a so-called sample of the song “Metall auf Metall” by the band Kraftwerk. The hip-hop producer Moses Pelham took a two-second excerpt of the song, the so-called sample, and incorporated it into his song “Nur mir” (Only Me), but without the band’s consent. Kraftwerk did not like this at all – and sued Pelham for injunctive relief and damages for infringement of record producer and copyright.

Going through the instances

The view that this was indeed an infringement of rights, i.e. that only Kraftwerk was allowed to distribute these two seconds of music, was endorsed by the Hamburg Regional Court and Higher Regional Court in 2004, 2006 and 2008, and finally by the Federal Court of Justice. Sampling, the term used in technical parlance for the re-use of sound tracks from existing pieces of music, was thus completely illegal according to the courts.

However: in its 2008 judgement, the Federal Subreme Court also addressed §24 German Copyright Act (UrhG) a.F.: Free Use. This regulation described that artists may use copyrighted works without asking the author for consent. However, only by way of suggestion and if the new work is sufficiently different from the old one.

The legal dispute between Pelham and Kraftwerk would later bring this regulation down. However, the Federal Court of Justice and the Higher Regional Court of Hamburg first established that Pelham could also have replayed the sequence – so that the sampling would not have been needed at all and § 24 UrhG a.F. could not apply in the present case

The tide turns for Pelham and “Nur mir” (Only me)

Pelham did not put up with the Federal Supreme Court decision either and went before the Federal Constitutional Court. There, he was proven right: The Federal Supreme Court had interpreted §24 German Copyright Act (UrhG) a.F. too narrowly, and Pelham’s artistic freedom had been unjustifiably interfered with. In addition, provisions of European Union law had to be taken into account. This is where the matter becomes more complicated: the European Court of Justice (ECJ) then informed the court, when asked, that free use according to § 24 German Copyright Act (UrhG) a.F. was not compatible with the InfoSoc Directive, which entered into force on 22 December 2002. Rather, in the case of distribution by Pelham after that date, there was an infringement of rights. Was this actually the case during the period in question? The Hamburg Higher Regional Court examined the question and answered in the affirmative.

An end in sight?

Actually, the proceedings could have ended here – Pelham would not have infringed Kraftwerk’s rights before 22 December 2002, but after that date they did. But: in its decision this year, the Hamburg Higher Regional Court allowed an appeal: since 7 June 2021, a so-called pastiche barrier has been in force in Germany with § 51a German Copyright Act. The still unclear definition of pastiche refers to the imitation of one work in another, but in an artistic or even supportive or appreciative manner. This opens up a new time period, which must also be taken into account, for which a possible infringement of rights – which the Hamburg Higher Regional Court does not currently see – could exist.

However, since the interpretation of the pastiche term under Union law in particular is not yet clear, the Higher Regional Court has allowed an appeal – the members of the band around founding member Ralf Hütter only accepted it on 13 May.

It remains exciting in a case that has always raised very fundamental questions about the relationship between artistic freedom and copyright protection and promises to continue to do so.

Patent Law Modernisation Act: Miriam Kiefer LL.M. lectures via online seminar at JETRO

The Japan External Trade Organization(JETRO) invited our Managing Partner Miriam Kiefer LL.M. to report on the latest developments of the Second Patent Law Modernization Law.

On 14 June 2022, Miriam Kiefer gave the participants an overview of the reform of the patent law in Germany in her 90-minute lecture. The subsequent discussion on the development of case law at the instance courts reflected the importance of the reform for businesses.

On the background:

Years have passed since the last major reform of industrial property protection by the Act on the Simplification and Modernisation of Patent Law of 31 July 2009. In order to ensure Germany’s outstanding position as a location for the protection of intellectual property in the field of industrial property rights also in the future in European and international comparison, it was necessary to review whether the current legal regulations still meet the requirements that effective and balanced protection of industrial property rights requires.

The result of the review of the regulations in this field of law was adopted by the German Parliament (Bundestag) in the form of the Federal Government’s draft lawon the simplification and modernisation of patent law (as amended by the Legal Affairs Committee) on 10 June 2021 (video), confirmed in the second Federal Council (Bundesrat) examination on 25 June 2021 and on 10 August 2021 in the Federal Law Gazette published.

The law reform focuses on three areas: First, the new law stipulates that in exceptional cases, injunctive relief for patent infringement may be limited for reasons of proportionality. Thus, Section 139 para. 1 sentence 3 Patent Act (PatG) now stipulates that the infringement of a patent does not necessarily entitle the infringed party to injunctive relief, but that this relief may be limited in exceptional cases by considerations of proportionality. In the case of a limitation of the right to injunctive relief, the infringed party shall be entitled to appropriate monetary compensation.

Secondly, the new Sec. 83 para. 1 sentence 2 Patent Act, according to which the Federal Patent Court shall give notice within six months from service of process, is intended to accelerate the nullity proceedings. This is intended to better synchronise nullity proceedings with infringement proceedings before the civil courts.

Thirdly, the new reference in Sec. 145a Patent Act to the provisions on the protection of trade secrets (GeschGehG) in patent litigation is an important step to ensure the protection of trade secrets also in patent infringement proceedings.

Miriam Kiefer LL.M. and Dr Christof Augenstein will be presenting further seminars with JETRO in the second half of the year, this time on the subject of UPC.

In the past, Dr. Christof Augenstein has already given a lecture in Tokyo on the subject of patent infringement proceedings at the invitation of JETRO. Patent infringement proceedings in Germany held.

JETRO (Japan External Trade Organisation), was established in 1958 by the Japanese Ministry of International Trade and Industry (MITI) to support and promote Japanese export efforts. In the 21st century, JETRO’s focus has shifted to promoting foreign direct investment in Japan and helping small to medium-sized Japanese companies maximise their global export potential.

JETRO has 76 overseas offices in 55 countries worldwide and 48 offices in Japan, including headquarters in Tokyo and Osaka. In Germany, JETRO is represented with three offices in Berlin, Düsseldorf and Munich.

On June 14, 2022, Miriam Kiefer gave the participants an overview of the reform of the patent law in Germany in her 90-minute presentation. The subsequent discussion on the development of case law at the courts of instance reflected the importance of the reform for companies.

Background:

Years have passed since the last major reform of industrial property protection by the Act on the Simplification and Modernization of Patent Law of July 31, 2009. In order to ensure Germany’s outstanding position as a location for the protection of intellectual property in the field of industrial property rights in the future as well in European and international comparison, it was necessary to review whether the current legal regulations still meet the requirements that effective and balanced protection of industrial property rights demands.

The result of the review of the regulations in this area of law was published in the Federal Government’s bill on the VSimplification and modernization of patent law (as amended by the Committee on Legal Affairs) on June 10, 2021 passed by the Bundestag (video), confirmed on June 25, 2021, in the second Federal Council review, and on August 10, 2021, in the Federal Law Gazette published.

The reform of the law focuses on three areas: First, the new law firmly establishes that in exceptional cases, injunctive relief for patent infringement may be limited for reasons of proportionality. Thus, § 139 para. 1 sentence 3 PatG now that the infringement of a patent does not necessarily entitle the infringed party to injunctive relief, but that this relief is subject to a proportionality test. In the event that the right to injunctive relief is limited, the injured party shall be entitled to appropriate monetary compensation.

Secondly, the new Section 83 para. 1 sentence 2 PatG, according to which the notice of the Federal Patent Court shall be given within 6 months from service of the action, serve to accelerate the nullity proceedings. This is intended to better synchronize nullity proceedings with infringement proceedings before the civil courts.

Third, the new reference in Sec. 145a Patent Act to the provisions on the protection of trade secrets (GeschGehG) in patent litigation is an important step to ensure the protection of trade secrets also in patent infringement proceedings.

Miriam Kiefer LL.M. and Dr. Christof Augenstein will conduct further seminars with JETRO in the second half of the year, this time on the subject of UPC.

In the past, Dr. Christof Augenstein has already given a lecture in Tokyo on the subject of patent infringement proceedings at the invitation of JETRO. Patent infringement proceedings in Germany held.

JETRO (Japan External Trade Organization), was established in 1958 by the Japanese Ministry of International Trade and Industry(MITI) to support and promote Japanese export efforts. In the 21st century, JETRO’s focus has shifted to promoting foreign direct investment in Japan and helping small to medium-sized Japanese companies maximize their global export potential.

JETRO has 76 overseas offices in 55 countries worldwide and 48 offices in Japan, including headquarters in Tokyo and Osaka. In Germany, JETRO is represented by three branches in Berlin, Düsseldorf and Munich.

Managing IP awards Kather Augenstein three IP Stars 2022

Every year, Managing Intellectual Property (MIP) celebrates the IP industry with its IP Stars, focusing on the IP practitioners who have achieved excellent performance during the year.

The expert shortlist is the result of a comprehensive and independent study in the IP field, based on market and client data as well as interviews with professionals and representatives of the branch. To receive an IP Star ranking, a lawyer must receive a significant number of recommendations from clients, peers and fellows.

For this reason, we are very honoured and grateful that three Kather Augenstein experts were again awarded this prestigious title at this year’s IP Stars 2022 notification. Senior Partner Dr Peter Kather, Name Partner Dr Christof Augenstein and Managing Partner Miriam Kiefer LL.M. were named Patent Star 2022.

Research for the IP Stars Guide covers over six IP practice areas and more than 70 jurisdictions and has become the leading trade publication for the IP profession. MIP IP Stars is a leading resource for companies and individuals seeking experienced lawyers for contentious and non-contentious IP advice.

Handelsblatt Ranking “Germany’s Best Lawyers 2022”: Kather Augenstein Rechtsanwälte are again among the best

This year, the renowned ranking of US publisher “Best Lawyers”, published annually in cooperation with the Handelsblatt, has again ranked Dr Peter Kather, Dr Christof Augenstein, Miriam Kiefer LL.M., Christopher Weber and Sören Dahm among Germany’s best lawyers in the field of intellectual property law.

The latest Handelsblatt ranking is based on the 14th edition of Best Lawyers rating for Germany. The US publisher Best Lawyers is the world’s oldest and one of the most renowned publishers of such lawyer rankings. In Germany, it identifies the most renowned legal advisors exclusively for Handelsblatt in an extensive peer-to-peer procedure. In this procedure, lawyers are asked which competitors they can recommend. The best list is published annually in late June exclusively in the Handelsblatt.

“We are very excited that we are represented by five Partners in the list this year and have made it to the top,” says Miriam Kiefer, Managing Partner at Kather Augenstein.“ “This is a great result!”

The Handelsblatt 2022 list of Germany’s best lawyers can be found here.

Higher Regional Court (OLG) Düsseldorf: Inspection procedure during pending public procurement procedure

Higher Regional Court Düsseldorf, decision dated 23 March 2022 – docket no. 15 W 14/21

The 15th Civil Chamber of the Higher Regional Court Düsseldorf has ruled in a decision dated 23 March (docket no. 15 W 14/21) that legal action can be taken before the civil courts even during an ongoing procurement procedure for applications to carry out an inspection procedure as well as acquiescence orders. The court also held in the specific case that “testing” constitutes an act of infringement within the meaning of section 9, sentence 2, no. 1 of the Patent Act, and that an inspection is required also at the premises of the recipient of the samples.

I. THE FACTS

The applicant is the owner of a patent relating to a weapon breech system. Like the first defendant, they took part in a Europe-wide public invitation to tender for the manufacture and supply of assault rifles (public procurement procedure) which was issued by the second defendant.

After the respondent to 2) had carried out comparative tests and sampling of the samples submitted by the first defendant, it announced that it intended to award the contract to the first defendant. After the second defendant had carried out comparative tests of the samples submitted by the first defendant, the second defendant announced their intention to accept the first defendant’s tender.

On the applicant’s motion for the order of an inspection procedure and the issuance of an acquiescence and protective order against both defendants, the Düsseldorf Regional Court ordered the inspection procedure only against the first defendant on 20 November 2020, which was carried out in December 2020. The survey procedure was carried out in December 2020.

A further request to conduct independent evidence proceedings against the defendant to The Regional Court dismissed a further application to conduct independent evidentiary proceedings against the second defendant in its decision on 17 August 2021. The applicant’s appeal was dismissed by the court in its decision dated 31 August 2021. The court justified its decision by stating that it was not competent and that, in addition, the inspection was not necessary, because an inspection at the first defendant was possible.

The Higher Regional Court partially amended the order and reworded it. The Düsseldorf Higher Regional Court dismissed the remaining appeal.

II. THE DECISION

1. COMPETENCE FOR INSPECTION PROCEDURE PERSISTS DESPITE ONGOING PUBLIC PROCUREMENT PROCEDURE

The Higher Regional Court ruled that it was competent to decide on motions for the conduct of inspection proceedings as well as acquiescence orders even during pending public procurement proceedings.

The special exclusive assignment imposed by section 156 para. 2 of the Act against Restraints of Competition (GWB) does not oppose its competence, since the motion to conduct an inspection procedure is not founded on a “claim” within the meaning of the provision. “Other claims” within the meaning of Section 156 of the GWB could also be legal provisions under non-procurement law which grant subjective rights and have a connection to the public procurement procedure. In particular, section 124 para. 1 no. 3 GWB, which governs the exclusion of companies from the procurement procedure due to serious misconduct, could also be used to assess a patent infringement in an incidental manner. However, the special allocation of section 156 para. 2 GWB does not apply to such claims which are not aimed at the protection of primary rights in the procurement procedure. However, the inspection claim which was motioned for was merely aimed at the preparation of patent law claims. In this respect, the civil courts were competent in parallel. The enforcement of patent claims should not be suspended during pending public procurement proceedings.

2. SAMPLING AND TESTING DURING THE PUBLIC PROCUREMENT PROCEDURE MAY CONSTITUTE PATENT-INFRINGING USE WITHIN THE MEANING OF SECTION 9 SENTENCE 2 NO. 1 OF THE PATENT ACT.

The Higher Regional Court further held that the sampling and testing of a patent-infringing object during the public procurement procedure may constitute “using” within the meaning of section 9, sentence 2, no. 1 of the Patent Act.

“Using” within the meaning of section 9, sentence 2, no. 1 of the Patent Act is to be interpreted broadly and encompasses any reasonable use in the broadest sense of any intended purpose. In the case of product patents, the designated use – in this case, military use – was not relevant.

Moreover, testing is not privileged under section 11 no. 2 of the Patent Act. Only the acquisition of knowledge about the subject-matter of the invention is privileged. However, in the public procurement procedure, the tests did not serve technical progress, but merely the assertion of competitive purposes.

3. THE INSPECTION WAS NECESSARY

Moreover, the inspection was necessary because a military weapon cannot be purchased on the public market. In addition, an inspection conducted at the first defendant’s premises would not have been equally effective. During the inspection at the first defendant, the applicant found various drawings showing different designs as well as embodiments that matched the most recent drawing made on the day on which the drawings and samples were handed over. 1) would not have been equally suitable. During the inspection at the respondent’s premises, the applicant had to 1) During the inspection at the first defendant, the applicant found various drawings showing different designs as well as embodiments that matched the most recent drawing made on the day on which the drawings and samples were handed over. Since drawings are usually created first and only then reproduced, it seems likely that other, older designs could be found with 2) the second defendant than with the first defendant.

Dr Benedikt Walesch

Kather Augenstein appoints Dr Benjamin Pesch as Counsel

Dr Benjamin Pesch joined Kather Augenstein in January 2019. He advises national and international businesses from various industries in the field of patent and utility model law.

After his state examination and a dissertation, completed summa cum laude, on the legal implications of disclosing trade secrets and insider information in the context of due diligence, Dr Benjamin Pesch was admitted to the German Bar in 2016. He started his career at one of the leading international law firms in Düsseldorf, already focusing on patent law.

In October 2021, Dr Benjamin Pesch was awarded “Rising Star 2021” by Managing Intellectual Property. He regularly publishes on patent law topics and is co-author of The Pharmaceutical Intellectual Property and Competition Law Review Germany.

“With Dr. Benjamin Pesch, we have a very qualified and experienced lawyer in our ranks, who is also highly appreciated by our clients,” says Miriam Kiefer, Managing Partner of Kather Augenstein. “We sincerely congratulate Benjamin Pesch on his appointment as Counsel and look forward working with him in the future.”

women in ip e.V. celebrates its 11th anniversary!

Last Friday, women in ip e.V. celebrated its 11th anniversary. With summery temperatures, the exclusive members’ event was a complete success thanks to a large number of guests, exciting keynote speeches and a dream location in the centre of Munich.

The event started with a welcoming speech by Ms Cornelia Rudloff-Schäffer, President of the German Patent and Trade Mark Office, followed by welcome words of the five women in ip e.V. board members Gabriele Mohsler, Claudia Dr. Schwarz, Pia Björk, Andrea Zehetner and our Managing Partner, Miriam Kiefer LL.M.

Following this, Gerlinde Kaltenbrunner, professional mountaineer with passion, who was the first woman ever who reached all eight-thousander peaks without the use of supplementary oxygen and without the support of high altitude porters, impressed the guests with her imposing keynote speech, before the evening turned into a dinner with inspiring exchange, networking and music.

Our colleague Dr Katharina Brandt describes her take away from the anniversary celebration:

“It was a great evening where I could meet many of the members personally. That was exciting for me, especially as a new member – I was welcomed openly and warmly.” Cornelia Rudloff-Schäffer shared her personal experiences in her welcome words, which are of particular value to me as a newcomer to this field. The unique story of Gerlinde Kaltenbrunner impressed me a lot. The fact that she shared her experiences with us and that she also took the time to speak personally to all members was really something special. I am looking forward to the next women in ip e.V. events and can only thank them for their organisation.

Looking forward to the next 11 years and many more get-togethers!”

“Miriam Kiefer adds: “I have been a board member of women in ip since 2019, as it is a particular concern for me to support and strengthen especially younger colleagues in their careers. A lot has been achieved in the past years, companies and law firms have set up programmes, among other things, to support the compatibility of career and family. However, there is still a lot to do; some women often lack the courage to take on professional responsibilities alongside family responsibilities. At women in ip, in addition to professional exchange, there is also the opportunity to talk about these topics, even in the context of mentoring if requested.”

For more information about women in ip, click here.

IAM Patent 1000: Kather Augenstein among the world’s leading patent professionals 2022

IAM Patent 1000 – The World’s Leading Patent Professionals and the world’s leading industry guide for patent lawyers, has published its rankings for the 9th time. Kather Augenstein is again recommended in the current 2022 edition and is thus among the world’s elite of the best patent professionals in the field of patent law infringement this year.

IAM bewertet die Rechtsanwälte von Kather Augenstein als „eines der stärksten IAM rates Kather Augenstein’s lawyers as “one of the largest teams of its kind, handling technically complex cases while making it appear simple.”

Five Kather Augenstein partners are recommended in the list of the 1000 leading patent lawyers worldwide. Congratulations to our partners Dr Peter Kather, Dr Christof Augenstein, Miriam Kiefer LL.M., Christopher Weber and Sören Dahm, being featured in the current ranking as recognized experts in patent infringement litigation.

“Following this year’s nominations by IP Stars, top rankings at The Legal500 and Best Lawyers by Handelsblatt, this is another award in 2022 which we are very excited about with the entire team,” adds Miriam Kiefer, Managing Partner, Kather Augenstein.

IAM 1000 makes it its business to bring together the best patent professionals in the most important jurisdictions. The extensive research process for this year’s edition was conducted over a five-month period by a team of analysts and included more than 1,800 interviews with patent specialists around the world.

Read the full IAM Patent 1000 entry here.

Copyright protects ideas, it protects – in terms of pop music – the artist who has first turned an idea into a work, i.e. who has created something new. This mechanism clashes with an industry that thrives on inspiration and further development. Also, because chord progressions are finite, the danger of similarity constantly lurks – whether intentional or not. In times of digitalization, retrieving music is much easier, but so is copying and transforming. When even the smallest similarities result in copyright lawsuits, there’s not much left of the creative process – at least that’s what artists like Ed Sheeran complain about.

Copyright infringement litigation is not only complex from a legal point of view, but also from an economic point of view, because the artist affected usually has a lot at stake, and the plaintiff is tempted by potentially high settlement sums. Thus, a copyright infringement can quickly become an expensive matter. Just recently, after four years, the English High Court ruled that singer Ed Sheeran had not cribbed from Sami Chokri and Ross O’Donoghue and their song “Oh Why” from 2015 for his most famous song “Shape of you” from 2017. This brings an argument to an end, but it does not put the problem to rest. Because in other places it is always the same problem, that famous musicians have stolen from lesser known. Dua Lipa currently has to defend herself in court because of her song “Levitating”. Stars such as Mariah Carey and Katy Perry have also been accused of copyright infringement. A summary of the problem:

Copyright infringement – the plagiarism

In 2020, the European Court of Justice (ECJ) made a landmark decision in the case of Kraftwerk against Moses Pelham, which at least provided clarity in the EU. We have already presented this judgment (https://www.katheraugenstein.com/en/metal-on-metal-judgement-on-judgement-the-copyright-dispute-between-kraftwerk-and-moses-pelham/). Basically, the ECJ ruled that “the reproduction of an audio fragment – even a very short one – of a phonogram by a user is in principle considered to be a partial reproduction within the meaning of Art. 2 lit. c of Directive 2001/29/EC and such reproduction is thus covered by the exclusive right of the phonogram producer under this provision”.

Is therefore already the minimal inspiration and adoption of harmonics or a short melodic section plagiarism, if it is not indicated who served as inspiration? It is true that an copyright infringement can be avoided despite the adoption of audio fragments if an audible reference to the original work is no longer comprehensible due to the modification of the fragment. However, pop music at least lives from simple chord sequences that may quickly seem familiar from other songs. Therefore, the complex question must always be answered: Where does artistic freedom end and copyright infringement begin?

The decisive factor in answering this question is whether there is a sufficient distance between the original work and the adaptation and whether both works are considered independent. The individuality of the work and its recognition value are decisive for the recognition value. It therefore depends on whether an average listener perceives the new work as such or whether the similarity to the original is unmistakable.

In the case of Ed Sheeran, the court has now decided that he had not copied parts of his song, neither “intentionally nor subconsciously”. So the court is basing this purely on the subjective level.

Courts have to deal with the question: Where is the boundary between art and copying? This question cannot be answered in a general manner, because it is almost impossible to draw a sharp line.

Against this background, a separate branch has even developed that provides expert opinions on the similarity of works – and thus analyses in terms of music theory what is a copy and what is not. However, the evaluation of the legal definition and differentiation of art and copy is ultimately left to the courts.