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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
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


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