Intellectual Property Law

Naughtily dubbed ?Dr Googleberg? or ?Baron cut and paste? by some parts of the German media, zu Guttenberg decided not to use his Phd title after the initial accusations of plagiarism broke, then wrote to his university (Bayreuth) and asked to ?return? his PhD, with the university subsequently deciding to take his doctorate away for good. Further investigations at Bayreuth University are still pending.

The whole story has some interesting legal implications as plagiarising a thesis could qualify as ?carrying an academic title without authorization? (section 132 German Criminal Code -unlikely to apply since the PhD was bestowed legally initially) as well as ?criminal disloyalty? (section 266 German Criminal Code ?Untreue?) since zu Guttenberg allegedly ordered essays from the scientific services of the Bundestag and used them in his thesis without properly referencing this third party work and due to the fact that he should have only used the services for his work as a member of parliament, not for his personal use. Perhaps most importantly, plagiarizing other?s works without referencing them properly could be copyright infringement under section 109 German Copy Right Act (using someone else?s works non-commercially without authorization).

For the copyright infringement provisions to apply the law requires that one of the authors of infringed texts filed a complaint with the relevant authorities (provided that the texts that been copied in the thesis were itself ?creations? that fell within the ambit of the copyright act), unless there was a heightened damage to the ?legal good copyright? so that there could potentially be a public interest in prosecuting this matter. (See here for a discussion of the criminal law implications (in German)).

It appears that none of the allegedly copied authors has so far filed an official complaint with the prosecution authorities and it is now up to the prosecution authorities in Hof, Bavaria to investigate further after zu Guttenberg resigned from all his official posts and as such is no longer covered by the immunity laws. The university of Bayreuth is also conducting further (internal) investigations as does an interesting internet project called "GuttenPlag Wiki", which appears to have established that more than half of the thesis has been copied.

This Kat was in Germany when the story broke initially and was intrigued by the very high approval ratings zu Guttenberg boasted before and after his resignation. It does hence not come as too much of a surprise that - in typical German fashion - the first third party trade mark application for the trade mark ?Guttenberg? in classes 9, 14 and 25 has been filed at the German Patent and Trade Mark Office.

Merpel now wonders whether Karl Theodor zu Guttenberg may find a new career as the new Paul (see above right and IPKat posts here and here) Knut, Heidi)?

From Dr Googleberg to the ongoing ?Google Book Settlement? class action which also affects German authors and right holders. On its website, the German Collection Society ?VG Wort? now informs us that it has again written to Judge Denny Chin of the New York District Court in relation to the ?Google Book Settlement? case (The Author?s Guild et al v Google, Inc., case no 1: 05-cv-08136 (DC)).

In its letter to the court of 14 February 2011 (which can be retrieved via VG Wort?s website by clicking here (in English)) the German Collection Society requests an extension of the court deadlines for claiming a cash payment by 31 March 2011 and for claiming the complete removal of works by 5 April 2011. The extension of time should be granted in an interim ruling. VG Wort argues that since it was at present uncertain whether a settlement would be approved by the court, ?(VG Wort) cannot be expected to incur the heavy administrative costs which would be involved? (...) ?in determining the current status of German books under the existing terms of the settlement.? Furthermore, VG Wort also stresses that it was at present still unclear which German works would be covered by the potential settlement. VG Wort had already submitted an amicus-curia brief to the court ahead of the fairness hearing of 18 February 2010 (see Amerikat's report here) in which it had criticised that it was difficult and almost impossible to determine which authors and publishers were affected by the settlement.

Certainly not the last chapter in this matter.