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Unauthorised Adaptation of Dr Zhivago (Lara's Child) (I ZR 65/96), Re
Bundesgerichtshof (Germany)
29 April 1999
Case Analysis
Where Reported
[2000] E.C.C. 355
Case Digest
Subject: Intellectual property
Keywords: Copyright; Germany; Literary works; Translations
Summary: copyright ; literary works; first publication in translation; protection available under Berne Convention; Germany
Abstract: P was the Italian publisher who first published the novel Dr Zhivago by Boris Pasternak in Italy for the first time in 1957. P consented to the publication of the original work in Russian in the USA in 1958. A sequel to the novel, entitled "Lara's Child", was written by M, an Englishman, despite the opposition of Pasternak's son. The publisher of that sequel obtained worldwide rights to it and granted the German rights to D. P objected to the German publication of the sequel, contending that Pasternak had acquired copyright protection there after the original was published in Italy and that the sequel was a plagiarised adaptation of the original. P's claim for an injunction preventing the marketing or advertising of the sequel was refused at first instance but P succeeded on appeal. D appealed.
Held, dismissing the appeal, that by granting protection on first publication in a Convention country, the Berne Convention Art.6(1) protected copyright in Germany, a Convention country. This was not prevented by the novel's first appearance as an Italian translation, rather than in the original Russian. Except for the wording, a translation contained all the essential elements of the original. The object of encouraging first publication in a Convention country could only be achieved if the original work was given protection by first publication in translation. Even though P had granted an exclusive subsidiary publishing right to another publisher, it retained the exclusive right of use and therefore had the right to bring an action based on its right to share in the sublicensee's sales revenue. M's sequel borrowed extensively from the original in terms of plot and characters and did not satisfy the requirements for a new and independent work.
Judge: Prof Dr Erdmann (President)
Legislation cited
Berne Convention for the Protection of Literary and Artistic Works 1886 Art.6(1)
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