Software law (Germany)
As software law refers to the branch of the IT law , where it comes to specialized substantive and procedural issues related to software, especially the creation, use and licensing.
Right to create software
A special feature of software law is that the technical feasibility of larger projects is often not foreseeable before the start of the project. The parties therefore regularly agree on a change procedure through which performance obligations can be modified during the contract period. The change request procedure has been established for this purpose .
Right of software transfer
As far as the legislator has not yet created any special regulations for software , the tried and tested rules are applied to software.
Thing characteristic of software
The Federal Court of Justice first clarified in 1987 that software is to be classified as a thing within the meaning of Section 90 BGB. This jurisprudence continues to this day, so that there are no longer any practical peculiarities for the applicability of German law.
Contract types for software provision
In practice, software leasing contracts are classified according to their focus according to a legally regulated type of contract, in particular sales contract, work contract, rent, and then assessed overall according to the corresponding provisions of German law of obligations . The choice of contract type has an impact on the assessment of performance obligations and compensation for deficiencies in performance, whereby the selection of a specific contract type cannot be achieved through an explicit designation, but can be achieved through the selection of a corresponding contract content.
Copyright protection for software
According to § 2 Abs. 1 Nr. 1 UrhG and § 69a Abs. 1 UrhG , computer programs including the draft material are protectable types of work within the meaning of the Copyright Act. In the 8th section of the Copyright Act (§§ 69a ff. UrhG) special provisions for computer programs are regulated. The copyright protection of software does not extend to the function (= idea) of software, but to its concrete programming implementation. According to § 69e UrhG , copyright also extends to decompilation. Software is therefore a type of work that can be passed on in a hidden way in relation to what is protected by copyright. In addition, are to 2 Copyright Act § 4. Also database works protectable, wherein the database vendor in a §§ 87a et seq. Copyright Act ausgestaltetes ancillary rights entitled to.
Process specifics
Proof of a copyright infringement can only be provided after disclosure of the source text . According to § 101a UrhG there can be a right to inspect the source code. A disclosure of source text can be achieved in an independent evidence procedure or by taking evidence in a lawsuit . The published source text is regularly assessed by experts / data reviewers. In order to protect the rights of the user, the court can decide according to Section 174 (3) GVG that the public is excluded (so-called confidentiality process ).
Software patents
Software can be patentable under certain conditions.
Individual evidence
- ↑ BGH, judgment of November 4, 1987 - VIII ZR 314/86
- ^ BGH, judgment of November 15, 2006 - XII ZR 120/04 ASP judgment - on the quality of the matter
- ↑ BGH, judgment of July 23, 2009 - VII ZR 151/08
