On October 17, 2002, in what is envisioned to become a series of events, the first Bavarian IT-Day was held in Munich. It was organized by the Bavarian Lawyers' Association (BAV) in cooperation with the working group on Information Technology (DAVIT) of the German Lawyer's Association (DAV). Mr. Mertl, president of the BAV, expressed his hope that this creation would evolve into a forum for both the legal profession and the business community, making the law "as user-friendly as computer applications."
Highlights included a talk by Prof. Dr. Jochen Schneider on the current state of the discussion on the patentibility of software in Germany, a presentation by Prof. Dr. Ulrich Sieber on Digital Rights Management and its protection by German Criminal Law, and an introduction by Dr. Peter Bräutigam on the impact that the reform of the German law of obligations is having on the drafting of IT-related contracts.
Schneider: patentibility of software
Prof. Dr. Schneider gave an overview of the history of the protection of computer software. Protection by Copyright was initially added to the German Copyright Code in 1985 and was further enhanced in 1993 with the adaptation of a European Council Directive. Because of these measures, it was generally thought that the issue of protecting computer programs was settled. Correspondingly, the German Patent Law states that "computer programs as such" are not patentable. According to the Bundesgerichtshof, the highest German civil court, however, a patent claim that solves a problem in the fields of classic technical science by means of a set of computer instructions is indeed patentable. With the door to the patentibility of computer programs opened wide, protection by patent today is much more sought after than protection by Copyright. The European Community, too, is moving in this direction by proposing a Directive on the patentibility of computer-implemented inventions.
This development creates a handful of serious issues: Firstly, a software developer must ascertain that the planned program will not infringe upon any patent rights, a task made difficult by the complicated language used in versing patent claims. Secondly, while the Copyright to a software program made-for-hire is by law transferred from the individual programmer to the employer, an inventive employee's rights are much more closely guarded by a law on employees' inventions ("Arbeitnehmererfindungsgesetz"), creating a financial burden for the employer who is obliged to award a remuneration in addition to regular wages.
Prof. Dr. Schneider closed by suggesting that lawyers advise their clients on these issues early on, even though any patent applications would be drafted by patent attorneys.
Sieber: Digital Rights Management as a prerequisite for a market of electronic products
In his presentation, Prof. Dr. Sieber emphasized the growing importance of digital goods on the Internet. Yet, he stated, successfully marketing them requires protective measures of various kinds: technical protection (e.g. Digital Rights Management), new business models and legal protection. Prof. Dr. Sieber found the protection of Digital Rights Management systems in German Criminal Law lacking effectiveness. In order to combat these deficiencies, he advocated to systematically analyze the different forms of deliquencies and then to search for and patch holes in the current Criminal Code. Especially the fact that hacking Digital Rights management systems purely out of a "sports' motive" is not punishable gives good reason to worry. The speaker also introduced proposed changes to the German Copyright Code, which would still let the "hacking hobbyist" go about his doings unharmed by the law.
Prof. Dr. Sieber suggested that the hacking of protective technical measures should only then not be punishable if the hacker can point to a "legitimate interest". This would be necessary in order to fulfill the assignment handed down by the German Constitutional Court to adequately protect intellectual property.
Dr. Bräutigam gave an enlightening talk on the effects that the reform of the German law of obligations (in force since 1/1/2002) is having on the drafting of IT-related contracts. For reasons that are incomprehensible to anyone not well versed in German Civil Law, it is very difficult to ascertain the statutory warranty period for custom-made software, which can be of up to three years in length. This discussion naturally has software developers very worried. Also, in case of faulty software, the new law of obligations makes it possible for the buyer to keep his options on choosing from damages or fulfillment of the contract open to the last minute. A software developer, however, has an interest in knowing at an early stage whether he needs to continue fixing bugs or is required to pay damages.
After a lunch break featuring hearty Bavarian food, the participants took part in two workshops. The first focused on the use of electronic signatures in the banking sector and in filing tax statements. The second centered on new developments in the field of IT-contracts, featuring talks on issues in selling software electronically and on the intricacies created when Copyright and Labor Law collide.
Finally, after the moderators of the workshops had summarized their findings, the event was closed by Mr. Dudek, chairman of the Bavarian Lawyers' Association, who gave his thanks to the speakers and expressed appreciation for the fruitful discussions that had taken place. Judging from the success of the first Bavarian IT-Day, subsequent events will well be worth a visit.
* Stephan Meyer is a fourth-year law student at Ludwig-Maximilians-Universität in Munich, focusing his studies on intellectual property and competition law. He can be reached at firstname.lastname@example.org.