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4 L. Computer & Artificial Intell. 5 (1995)

handle is hein.journals/infctel4 and id is 1 raw text is: Law, Computers & Artificial Intelligence, Vol. 4, No. 1, 1995 The New Copyright Provisions for the Protection of Computer Programs in Germany ANDREAS RAUBENHEIMER Bardehle, Pagenberg, and Partners, Postfach 860620, 81633 MUnchen, Germany ABSTRACT On June 24, 1993 new provisions for computer programs were inserted in the German Copyright Act which are likely to improve software protection. According to the official government notes, the recent case law and the literature-contrary to the old law--software will now, in general, be copyright protected under Section 69 a para. 3 Copyright Act. Another improvement of major practical importance is the destruction claim offered by Section 69f Copyright Act with respect to illegal program copies as well as to any device which is destined to circumvent or to remove a program protection. Although questions of principle seem to be more or less clear further clarification by the courts will be required as to details. Before the latter is achieved there remains some uncertainty as to the precise requirements of copyrightability under Section 69 a para. 3, including the necessary substantiation and evidence, as well as to the definition of the protected expression form under Section 69 a para. 2 which will decide the scope of copyright protection. In any case, one can expect that in the long term the Copyright Act could probably be used as an additional and effective means against software pirates. 1. Introduction The effective protection of computer programs in Germany-as in other coun- tries-has become more and more important. In most countries such protection is granted under copyright law. In Germany although protection under the unamended Copyright Act of 9 September 19651 was-in principle-already possible, in practice, however, software protection was provided using other provisions, such as unfair competition rules2. The reason was that the Federal Supreme Court only accepted the copyrightability of software in exceptional cases since an extremely high standard of originality was demanded. Therefore, Germany was criticized for not granting an appropriate and effective copyright protection for computer programs. As a consequence the EC Council Directive on the Legal Protection of Computer Programs of May 14, 1991' (Software Directive), which considerably improves software protection in the European Union, was, in particular, aimed at the German situation. As a result new provisions on copyright protection of computer programs in Germany are now in force which correspond to those of the Software Directive. The software manufacturers hope that these new special provisions for computer programs will ensure appropriate software protection under German copyright law in the 0962-9580/95/010005-20 0 1995 Journals Oxford Ltd 5

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