EUPillar LG München I, 14.05.2012

Summary

The parties argue about the right of use concerning certain nautical charts. The claimant is the Secretary of State for Defence of the United Kingdom of Great Britain and Northern Ireland. The Ministry of Defence presides over several departments comprising the Hydrographic Office of the United Kingdom (UKHO), which is the world’s leading supplier of nautical charts. The defendant is a German company which develops and distributes navigation systems based on nautical charts. According to the statement of claim, the defendant violated the claimants’ copyright on different nautical charts by unauthorisedly using them for the development of its navigation systems. According to Art. 8 (1) Rome-II-Regulation, the law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed (lex loci protectionis). As the claimant accused the defendant in Germany and the nautical charts were protected under German intellectual property rights (§ 2 (1) No. 7, (2) UrhG [Copyright Act]), the Court applied German law. The lex loci protectionis further determines the legal ownership of the copyright. According to § 7 UrhG, the copyright owner is the actual creator of the intellectual property (that is the individual cartographer working for UKHO). In Germany, § 43 UrhG orders a legal subrogation to the employer. However, in the conflict of laws, subrogation in labor relations is a question of the law of the employment contract, i.e. English civil service law. According to English law (Sec. 163 (1) Copyright, Designs and Patents Act 1988), owner of any intellectual property created by any government employee as part of his/her employment is Her Majesty, Queen Elisabeth II (“Crown copyright”). That is why English law actually doesn’t resolve the question of subrogation within the civil service rules. The Court bridged the gap caused by the lack of corresponding rules in English law by adaptation and applied the German subrogation rule. Furthermore, the Court had to answer the question of who is the employer of the individual cartographers and therefore legal owner of the copyright. According to the applicable conflict of law rules, this question must be answered by the law of contract. From a historic point of view, the cartographers now working for UKHO were originally working for the British Admiralty and therefore immediately employed by the Crown (“Crown Service”). This status hasn’t been changed even in 1964, when the Ministry of Defence was established as the legal successor of the Admiralty. Therefore, the cartographers must still be regarded as immediately working for the Crown. Finally, the Court stated that, according to the facts, the defendant had infringed the claimants’ copyright by using them for its nautical navigation system. The Court therefore granted the claim.