Technology- & IT-Law

Copyright protection of software in Germany

Copyright protection of software under German law: According to § 69a para. 3 UrhG a software (“computer programs'”) is protected by copyright in Germany if it represents an individual work to the extent that it is the result of the author’s own intellectual creation. But when exactly does copyright protection of software exist in Germany?

General information on copyright protection of software

In Germany, copyright in computer programs is governed by Section 69a (2) UrhG. According to this, computer programs are to be regarded as literary works within the meaning of the Copyright Act and therefore enjoy the protection provided for literary works. This means that the author of a computer program has the exclusive right to reproduce, distribute and make the program publicly available.

However, there are some peculiarities in the copyright of computer programs, which are regulated by the Copyright Act. For example, a natural person who writes a computer program for his or her work may not have the program regarded as the “work of an employee” (Section 11 (2) UrhG). In this case, the copyright in the program would automatically pass to the employer unless otherwise agreed.

It is important to note that the copyright on computer programs only protects the creator of the program and not the idea behind the program. This means that while other people are not allowed to copy the program, they are allowed to implement the same idea in a different way, as long as they do not use any parts of the original program.

Overall, the copyright law for computer programs in Germany gives the creator of the program the exclusive right to reproduce, distribute and make the program publicly available. However, it is important to note that copyright only protects the creator of the program and not the idea behind the program. Employed programmers have to observe special regulations with regard to the copyright of their programs.

Design of the copyright protection of software

According to the case law of the Court of Justice of the European Union, the subject matter of protection created by Union law relates to the computer program in all its forms of expression that allow it to be reproduced in the various data processing languages, such as source code and object code (ECJ, C-393/09).

Protected expressions of computer programs are primarily the source code and the object code of a computer program (ECJ, C-393/09). In contrast, neither the functionality of a computer program nor the programming language or file format used within the framework of a computer program to make use of certain functions of the program are a form of expression of that program (ECJ, C-406/10).

Allowing the functionality of a computer program to be protected by copyright would open up the possibility of monopolizing ideas to the detriment of technical progress and industrial development. The graphical user interface is also not covered by protection, since it is merely an interaction interface that enables communication between the computer program and the user. It is merely an element of this program by means of which the users use the functions of this program.

Consequently, this interface does not constitute an expression of a computer program and accordingly cannot benefit from the specific protection afforded by copyright for computer programs under this Directive. At the level of the program code and the lowest abstraction, the concrete collection, selection and structure of the commands are accessible to copyright protection (OLG HH, 5 U 23/12).

The form of expression therefore covers not only the program data of the machine, object or source code but also the internal structure and organization of the computer program (OLG Düsseldorf, judgment of 29.06.1999 – 20 U 85/98, OLG HH, 5 U 23/12).

When is software protected by copyright?

No other criteria, in particular qualitative or aesthetic criteria, are to be applied to determine the copyrightability of software. § Section 69a UrhG grants copyright protection here according to the principles of the so-called small coin; a special level of creation or design – as follows from the prohibition of qualitative criteria – is precisely not required.

Whether the respective software is not only completely banal, but at least protected as “small coin”, depends on the respective technical implementation of the task given by the respective idea. What is not protected by copyright is what results from the nature of the task and from purely functional considerations: Thus, a programming service that is protectable under copyright law exists in any case if a procedure is used that goes beyond a routine solution of the respective task.

The burden of proof for the required level of creation is on the plaintiff – even if the requirements for the quality of the work are only low and the copyright protection of computer programs is the rule. There is no statutory presumption in this respect.

Excursus: Legal presumption of protectability of software?

On this question, see BT-Dr. 12/4022, page 9, on Section 69a (3) UrhG and Cologne Higher Regional Court, 6 U 243/18:

“Paragraph 3, first and second sentences, corresponds to Article 1(3) of the Directive in conjunction with the 8th recital.

Article 1 (3) of the Directive contains an EC-wide harmonization of the requirements for the level of creativity of computer programs at a uniform level. The aim is to prevent a program from enjoying copyright protection in one Member State but not in another because of higher requirements for the level of creativity. The provisions of the EC Directive result in copyright protection of computer programs being the rule and a lack of creative merit being the exception. The case law of the Federal Court of Justice in the “debt collection program” and “operating system” decisions is not in line with the directive. The latter also requires the protection of simple personal creation, the so-called “small coin”.

This draft does not provide for a statutory presumption of the protectability of computer programs under copyright law. Corresponding demands to reduce the burden of proof and presentation of the party asserting a copyright infringement have been raised in the course of the preparation of the legislative procedure.

However, such a presumption would be alien to the systematics of intellectual property protection. Copyright arises with the creation of the work. It is not tied to the fulfillment of any formalities or official acts, such as the granting of a patent (§ 1 PatG), application for and registration of trademarks (§§ 1 ff. WZG) and designs (§§ 7 ff. Geschmacksmustergesetz). Presumption effects for legal transactions can be attached to such official acts. This system would be abandoned if legal presumption effects were attached to the internal act of creation of the work.

The undisputed need to grant effective legal protection to computer programs does not require that these fundamental systematic concerns be set aside. The copyright protection previously granted to computer programs has proven ineffective due to the Federal Court of Justice’s case law on the level of creation. As explained, there is no longer any room for this case law under the validity of Section 69a (3). It is to be expected that the different national requirements for the level of creation will be standardized and thus the specifically German problem of demonstrating and proving the quality of a work will be solved.

It is the task of case law to take into account in a practical manner the fact that copyright protection for computer programs is now the rule when assessing the question of what requirements are to be placed on the burden of proof regarding the level of creation. The plaintiff will have to show that his program does not merely imitate the work of another, that it is his own intellectual creation.

Only if there are serious indications that a program is very simply structured should a more detailed description of the program’s content be required. What is needed is a lightening of the burden of presentation that allows a global, sweeping description of the circumstance that a program is not completely banal and is protected at least as a “small coin”. The possibility of a preliminary injunction or border seizure (Section 111 a UrhG) must not be made more difficult by excessively high requirements for demonstrating the quality of a computer program’s work, with the result that these procedures would hardly be manageable in practice.

Patent protection for software.

In Germany, software patents are generally permissible and conceivable – as long as they meet the patenting requirements. This includes, in particular, that the software in question is new and inventive.

Software is considered novel if it was not already known before its disclosure by the patentee and, as a result, was not disclosed. Software is inventive if it cannot be expected from a person skilled in the art on the basis of common knowledge or obvious steps.

However, there are also restrictions on the patenting of software in Germany. For example, no patent may be granted on a purely mathematical method, a mere scheme or a mere idea. Nor may a patent be granted on a mere computer implementation unless it leads to a technical effect.

Overall, German patent law thus provides protection for software that represents a new and inventive technical solution and does not consist of a mere idea or scheme. However, it is important to carefully examine the patenting requirements to ensure that the software in question is indeed patentable.

Example: Copyright protection for functionless button?

The extent of this copyright protection of software is shown by the Higher Regional Court of Cologne, which also affirmed protection for a functionless button on the basis of its concrete integration and design:

On the other hand, the Calculate button dummy can be evaluated as an individual programming achievement … The button is without function. It has the sense that by clicking on it the field, in which before the input took place, is left and the associated onchange event is released.

The onchange is triggered differently depending on the field changed and remembers which value to use as the basis for calculation, whereas the button dummy allows the user to use the calculator intuitively. The calculation would also be triggered by clicking anywhere outside the corresponding input field.

The programming of an addition not required for the solution of the respective calculation task, solely for the improvement of the intuitive operation of the calculators, goes beyond the purely factual requirements. The fact that the input button is actually functionless was undisputed in the first instance. This is also to be assumed in the appeal proceedings. The defendant has now denied the plaintiff’s statement with ignorance, but since he copied the plaintiff’s computers and used them himself, his denial is inadmissible. He could have explained the function of the input button in concrete terms.

Oberlandesgericht Köln, 6 U 243/18
German Lawyer at Law Firm Ferner Alsdorf
I am a specialist lawyer for criminal law + specialist lawyer for IT law and dedicate myself professionally entirely to criminal defence and IT law, especially software law. Before becoming a lawyer, I was a software developer. I am an author in a renowned commentary on the German Code of Criminal Procedure (StPO) as well as in professional journals.

Our law firm specialises in criminal defence, white-collar crime and IT law / technology law. Note our activity in digital evidence in IT security and software law.
German Lawyer Jens Ferner (Criminal Defense & IT-Law)