Definition and delimitation
Intellectual property comprises independent intellectual goods that are protected by the legal system so comprehensively that their owner can prevent their use by others (it is a so-called exclusive right) . Intellectual property is distinguished from tangible property by the fact that the protected goods of intellectual property can, as a rule, be used at any time and in any place, irrespective of their physical fixation .
The term is mainly used in an international context (“Intellectual Property”, “Propriété Intellectuelle”), whereas in Germany the term intangible property is more common. Even though the terms are similar in content, the term intellectual property was preferred in Germany for a long time, mainly for legal dogmatic reasons. In the meantime, however, the term “intellectual property” has become established here as well, especially in the context of digitalisation .
The field of intellectual property is divided into two sub-areas. On the one hand, there is copyright, which protects personal intellectual creations. The other sub-area is the protection of industrial property, which protects the intangible goods of those working in the field (e.g. word marks or technical inventions) and can be subdivided into the legal areas of patent law, trade mark law, design law, plant variety protection law and other more specific legal areas .
Intellectual property is protected by Article 14 of the Basic Law, as is property in kind. Furthermore, in copyright law in particular, the creator’s ideal connection to his or her work is protected by the general right of personality (Article 2 (1) in conjunction with Article 1 (1) of the Basic Law) .
Whereas in antiquity and the Middle Ages the main focus was on protecting the personal honour of the author by falsifying copies of his works, for example by using so-called “book curses”, the modern understanding of the term was shaped in modern times by the invention of the printing press and the ideas of the Enlightenment.
With the invention of printing, the possibility of an almost uncontrolled reproduction of works arose for the first time. In order to be able to monitor the dissemination of information, but also to enable investment protection for the book printers, the so-called privilege system developed in Europe, which linked the permission to reprint books to the granting of corresponding privileges .
The concept of intellectual property developed later from the ideas of the Enlightenment and from the doctrine of natural law. Every person should receive ownership of all goods created by him, all the more so of immaterial goods, since these are the “fruits of one’s own intellect” . Thus, in addition to the property law pillar of intellectual property protection, there was also an ideal pillar, which still characterises intellectual property today, for example in the form of the so-called moral rights (§§ 12 ff. UrhG) .
Since the first codifications of copyright law in the 19th century, the field of intellectual property has been repeatedly reformed and updated. In the process, the legislation has been influenced both by international agreements (for example, by the World Intellectual Property Organisation, WIPO) and by requirements of the European Union.
Application and examples
In 2012, the then Minister of Justice, Sabine Leutheusser-Schnarrenberger, summed up the importance of copyright for the digital transformation with the statement “copyright is the economic order of the Internet age . But the other pillar of intellectual property also influences the areas of digitalisation.
Copyright plays an important role in file sharing and streaming as well as in the use of copyrighted content to create and distribute user-generated content. The distribution and use of copyrighted content on platforms such as YouTube repeatedly leads to discussions about the efficient enforcement of copyright in digital markets. In this context, automated content recognition mechanisms (“upload filters”) are now also used .
Trademark law in turn influences both the allocation of domains and the search engine optimisation of websites . It also influences activities on trading platforms such as eBay or review videos on platforms such as YouTube .
When it comes to the development of new technologies and the protection of investments, patent law comes into play, while semiconductor protection law provides a special set of instruments for the protection of computer chips .
Criticism and problems
Digitalisation in particular has led to new challenges for the protection of intellectual property. The ubiquitous protected goods of intellectual property have always had the potential for worldwide distribution and use. Through digitisation and the “borderlessness” of the internet, this potential has now been realised to an unprecedented extent .
In intellectual property, the principle of territoriality and the principle of the country of protection apply. This means that the territorial scope of the individual IP regimes is limited to the territory of the regulating state (territoriality) and that the right holder pursues his rights individually in each jurisdiction. A judgement in the USA does not, in principle, extend to disputed issues in Germany (country of protection) . Although this problem was recognised early on and attempts were made to address it through international agreements (e.g. as early as 1886 through the Berne Convention), these treaties usually only establish a common minimum level of protection, which does not always prove to be sufficient in the digital age. Even in the European Union, there has not yet been any conclusive common regulation of intellectual property in the internal market. Although the EU has already taken regulatory action, it has so far only made use of directives which still leave the member states some leeway in the precise formulation of the regulations (Article 288 (3) TFEU).
At the same time, digitisation has rekindled the discussion about the balance between the protection of intellectual property owners and its social obligation (Article 14 (2) of the Basic Law, intellectual property also obliges). Thus, on the one hand, appropriate remuneration of authors and effective protection of innovation must be ensured, but at the same time the public interest in the use of works must be safeguarded. This debate has gained new explosiveness through discussions about access to knowledge on the internet, but also the “remix culture” on YouTube .
In this context, the question is raised whether the idealistic approach of intellectual property is still justified at all in the digital age. Particularly in the course of the mass use of works, intellectual property is increasingly being reduced to a pure protection of innovation and investment .
In principle, intellectual property only protects goods that are expressly named by law and recognised as protected property (so-called numerus clausus). Here, with every new invention or innovation, the problem arises as to how these new, intangible economic goods can be integrated into the existing system and whether they can be recognised as objects of protection .
At bidt, the project “Challenges of regulating digital communication platforms” deals with copyright issues in the digital field. In particular, with regard to the distribution of copyrighted works for the production of user-generated content.
Further links and literature
On the differentiation of intellectual property and intellectual property rights:
- Götting, H.-P., Der Begriff des Geistigen Eigentums, GRUR 2006, p. 353 ff.
On the history and development of copyright:
- Ann, C., Die idealistische Wurzel des Schutzes geistiger Leistungen, GRUR Int 2004, p. 597 ff.
On fields of application and problems of intellectual property on the internet:
- Hoeren, T., Skript Internetrecht, Status July 2020.
- Heckmann, D. (ed.), juris Praxiskommentar Internetrecht, 6th edition, 2019.
 Götting, H.-P., Der Begriff des Geistigen Eigentums, GRUR 2006, p. 353 et seq.
 Pierson, M., Ahrens, T., Fischer, K., Recht des geistigen Eigentums, p. 40.
 Götting, H.-P., Der Begriff des Geistigen Eigentums, GRUR 2006, p. 353 ff.
 Pierson, M., Ahrens, T., Fischer, K., Recht des geistigen Eigentums, p. 39.
 Bryde, B.-O., Wallrabenstein, A. in: v. Münch/Kunig, GG Art. 14, marginal no. 37.
 Ann, C., Die idealistische Wurzel des Schutzes geistiger Leistungen, GRUR Int 2004, p. 597 ff.
 Leutheusser-Schnarrenberger, S., Urheberrecht – Kein Grund zum Kulturpessimismus – Frankfurter Allgemeine Zeitung, 30.05.2012.
 cf. YouTube’s Content-ID system as well as the Federal Government’s draft for a Copyright Service Provider Act.
 Hoeren, T., Skript Internetrecht, Status July 2020, p. 317.
 An example of this is Lego’s action against the YouTuber “Hero of the Bricks”.
 Pierson, M., Ahrens, T., Fischer, K., Recht des geistigen Eigentums, p. 187 ff.
 op. cit., p. 41 f.
 Hoeren, T., Skript Internetrecht, Status July 2020, p. 565 ff.
 For example, through the InfoSoc-RL (Directive on the Harmonisation of Copyright in the Information Society) or through the DSM-RL
(Directive on Copyright in the Digital Single Market).
 Xu, W., Ji, Y. P., Ji, Y. K., Han, W., Networked Cultural Diffusion and Creation on YouTube: An Analysis of YouTube Memes, 2016 Journal of Broadcasting & Electronic Media, 60:1, 104-122.
 Ann, C., Die idealistische Wurzel des Schutzes geistiger Leistungen, GRUR Int 2004, p. 597 et seq.
 Pierson, M., Ahrens, T., Fischer, K., Recht des geistigen Eigentums, p. 41.