Copyright Protection for Computer Programs and Source Code in Germany

Copyright protection arises with the creation of a work of literature, science or art, Section 1 UrHG. Works are to be defined as personal intellectual creations, which are listed in Section 2 (2) UrHG. The creation of a work is based on various characteristics defined by case law, which must be fulfilled to be eligible for copyright protection. Insofar as an individual work exists, copyright protection also arises with its creation.

The following conditions must be met for this:

1. It must be a personal creation – that is, a personal creation by a human being.
2. It must have a perceptible form – that is, it must be perceptible to the human senses. This characteristic provides a clear distinction from the mere idea or a concept of a work, which in themselves are not yet eligible for protection.
3. It must have intellectual content – that is, the work contains a thought or feeling. This requirement distinguishes the work from products that have been created by purely mechanical action.
4. It must demonstrate an element of creativity – this characteristic is at the heart of the concept of a work and requires an individual design. The work must, therefore, stand out from the mass of everyday things and must not comprise any technical or routine performance.

A computer program must fall within the above definitions to be eligible for copyright protection. Computer programs are programs of any kind and can be operating or application programs. This is where they differ from software. These terms are often used synonymously in everyday language, but they differ in the following ways.

Hardware is a physical machine, so in the case of a computer, all the tangible parts. The software, i.e. the information that the computer needs to function, runs on the hardware. The software can consist of several programs. An application is one or more programs designed for the end user to allow the computer user to perform several functions, tasks or actions simultaneously.

A program is ultimately a series of instructions that tell the computer what to do. All applications are, therefore, programs, but a program is not necessarily also an application. For example, many programs run in the background of an operating system such as Windows, but because they were not programmed for the end user, they are not applications. Spotify or Firefox, for example, are applications because they have a graphical user interface for the end user. Computer programs thus include both operating and user programs.

German copyright law regulates computer programs in a separate section (Section 8 UrHG). In addition to computer programs of any kind, the design material for these is also protected. To be subject to copyright protection, the computer program must – as explained above – represent an individual work, which is usually the case with computer programs. The protection then also extends to the expression of the computer program, including, in particular, the object code and the source code. However, ideas and principles on which an element is based are explicitly not protected.

The accompanying materials used for the creation (user documentation, operating instructions, system manuals or specifications) are not to be qualified as computer programs and thus do not fall under this section. However, they can obtain independent protection as literary works in Section 2 (1) UrHG.

If an employee creates a computer program while performing their duties or following their employer’s instructions, the employer is entitled to all proprietary rights in the computer program. The employee only has rights of use if these have been contractually agreed upon in the employment contract in deviation from the law.

The copyright holder has the exclusive right to perform or authorise the following acts.

The exclusive right to the permanent or temporary reproduction of a computer program belongs only to the author or the rights holder. Duplication includes copying to any type of storage media, such as CD-ROM, hard drives, or servers. In addition, the loading, displaying, running, transferring, or saving of the computer program also requires the consent of the author or rights holder insofar as these actions require duplication.

Furthermore, consent is required for the translation, editing, arrangement and other reworking of a computer program (e.g. error correction; removal of a dongle that is used as hardware copy protection to protect software from unauthorised copying by third parties) and the reproduction of the results obtained therefrom.

The author or copyright holder has the exclusive right to distribute the original of a computer program or copies thereof in any form. The right to rent to the public is included within this scope of distribution (Section 69c (3) UrhG).

If a copy of a computer program is placed on the market with the consent of the rights holder in the territory of the European Union or another state party to the Agreement on the European Economic Area by way of sale, the distribution right in relation to this copy is exhausted, with the exception of the rental right, because mere rental or lending does not constitute a sale.

Computer programs can also be distributed by downloading them over the internet, meaning that the customer does not receive a data storage medium but downloads the computer program directly onto their computer. In this constellation, the exclusive distribution right of the author or rights holder is also exhausted. This means that the acquirer of the copy may further distribute the computer program. However, this is subject to the proviso that the author or rights holder has allowed the first acquirer to use the copy without any time limit and receives a fee for this that corresponds to the economic value of the copy of the work belonging to him. (Judgment of the Court of Justice of the European Union of 3 July 2012, Az. C 128/11 – UsedSoft). Exhaustion does not apply if the first acquirer received the software only for a limited period of use.

The rights holder also has the right to publicly reproduce a computer program by wire or wireless means. This includes making the program publicly available in such a way that members of the public may access it from a place and at a time individually chosen by them.

If reproduction or adaptation is necessary for the intended use of a computer program, including error correction, the authorisation of the author or rights holder does not need to be obtained – unless special contractual provisions exist that require such authorisation, Section 69d (1) UrHG.

The actions required for use include:

• loading,
• displaying,
• running,
• transferring or
• storing in the main memory.

Improvements or extensions of the computer program, adaptations to the user’s change requests, and the removal of a dongle query to restore the functionality of a computer program do not belong to error correction. Therefore, these changes are subject to approval.

If a person is authorised to use the program, they may create a backup copy for future use. No consent is required for this.

The right to a backup copy is mandatory and thus cannot be contractually waived, as per Section 69g (2) UrHG.

If a person is authorised to use the computer program, they may, without consent, observe, study, or test its functioning to determine the ideas and principles underlying any element of the program. They may do so by loading, displaying, running, transmitting, or storing the program. The consent of the author or rights holder is, therefore, not required. Furthermore, this right is also mandatory law, from which no contractual deviation is possible, Section 69g (2) UrhG.

Decompilation is the reverse translation of a program’s machine-readable object code into human-readable source code.

It does not require the consent of the author or right holder if reproduction of the code or translation of the code form for reproduction or revision cannot be dispensed with. Furthermore, obtaining the information necessary to achieve the interoperability of an independently created computer program with other programs must be possible.

This is also mandatory law and cannot be waived by contract, Section 69g (2) UrHG.

The author or rights holder can demand the destruction of illegally manufactured or distributed copies of a computer program or copies intended for illegal distribution. This right can be asserted against the owner or possessor of the illegal copies, Section 69f UrHG. This right also applies to means intended to facilitate the unauthorised removal or circumvention of technical programme protection mechanisms.

Protective mechanisms are all devices whose purpose is to prevent copyright infringement, such as dongles or encryption.

The regulation of Section 69f UhrG is not exhaustive, so the author or rights holder can also claim injunctive relief, information and damages in the event of copyright infringement.

If you require legal support in this area, please do not hesitate to contact us. Schlun & Elseven will check all possible claims for you and, if necessary, enforce them in court – regardless of whether you believe that your copyrights have been violated or if you are being accused of violating others.