153 The CCPL grants rights of use for the licensed materials that relate to copyrights and copyright "similar rights" (Section 1.c). In accordance with this exclusion clause, the CCPL expressly does not license patent and trademark rights. Consequently, neither the use of technical inventions under patent law nor the trademark use of a sign protected under trademark law is permitted under a CC licence.
154 Patent law protects technical inventions that are granted by the state after an examination procedure to determine the protectability of a technical invention. The CCPL does not authorise the use of patents. If a patent specification (i.e. the description of a technical invention for which a patent has been granted) is covered by a CC licence, this licensing does not extend to the use of the technical invention.
155 The clause may be relevant in the area of software: Insofar as software code may be protected by copyright in accordance with the provisions on computer programmes pursuant to Sections 69a et seq. of the German Copyright Act (UrhG), the computer programme, as a work protected by copyright, initially constitutes a suitable subject matter for licensing under the CC licence. However, CC licensing of software with the aim of creating free and open source software (frOSS) is not advisable. Many frOSS licences implicitly or explicitly also license patent rights so that the software can also be used in the context of a patented process, for example. Such a licence is expressly not granted under the present clause. Furthermore, the CCPL does not contain any software-specific requirements for the distribution of source code. Rather, the licences created for free and open-source software should be used (see Einl Rn. 7).
156 There are conceivable scenarios in which CC-licensed material is protected by both copyright and trademark law. One example is a registered figurative mark that also meets the threshold of originality required for copyright protection. If this figurative mark is released under a CC licence, it may be used in accordance with the licence. Since the CCPL does not grant any trademark rights of use, the licence granted in such cases extends only to acts of use under copyright law. If the licensed logo is used, for example, as an indication of origin and thus in a manner relevant to trademark law, the rights of use covered by trademark law must be obtained separately in addition to the CC licence. Permissible – since there is generally no use in the trademark sense – would be the use of the figurative mark, for example, in journalistic, scientific or artistic discussion.
157 The clause does not expressly regulate how other industrial propertyrights are to be dealt with in addition to patent and trademark law. Specifically, design and utility model protection should be mentioned here. The clause does not mention these property rights and does not formulate any catch-all provision.
158 Given that not all property rights are explicitly mentioned, the scope of a CC licence may be unclear in some – albeit few – scenarios: for websites, for example, both design protection for the layout and copyright protection for the texts and images are conceivable. If a website as a whole is licensed under a CC licence, for example via the footer with the wording "This page is licensed under CC BY 4.0", the question arises: Is only the content of the page, i.e. the texts and images contained therein, licensed, or does the licence also extend to the design of the page, which in the example case falls under industrial design protection law?
159 Whether the present exclusion clause covers other property rights beyond patent and trademark rights must be determined by way of interpretation. According to its wording, it is strictly based on the legally regulated type restriction of absolute property rights under industrial property law – in this case: patents and trademarks. International design protection or similar is therefore not expressly excluded under the present clause.
160 The issue raised by the case study can be addressed by the granting of the licence or the subject matter of the licence: The design protection of websites may be released via "similar rights" within the meaning of Section 1.c of the CCPL ("Copyright and Similar Rights"). The definition there refers to "rights closely related to copyright". This primarily, but not exclusively, refers to ancillary copyrights. Thus, a protected design can also be a suitable subject of CC licensing. If, in the case study, the design is not considered a suitable subject of the CCPL licence, the wording "This site is ... released" would suggest that implicit release of the statutory design protection could be considered in addition to CC licensing.
161 For technical property rights such as utility models, which are related to patents, the granting of a licence seems rather unlikely.
Creative Commons License
Open Access Kommentar, Commentary on Section 2.b.2. Patent and trademark rights is licensed under a Creative Commons Attribution 4.0 International License.
