Thu, Oct. 13, 2005

Transfer of Software

.   A decision on software law by the German Supreme Court in Civil Matters, Bundesgerichtshof, in Karlsruhe is the subject of Arne Trautmann's careful analysis in the Law Blog on October 10, 2005.

The decision of March 3, 2005 in the matter IZR111/02, a/k/a Fash 2000, involves the requirements for a transfer of a copyrightable work and specifically a complex a computer program. The court considers the program of copyrightable quality which is not the standard for all software under German copyright law.

 The key issue is whether a program that has been coded by one programmer--and after a transfer to a corporation--has been added to by other programmers, requires the consent of all three programmers for the further transfer from the estate of the then-bankrupt corporation to another party.

 The court examined the issues of the rules of construction of contracts and, in particular, of distinguishing a co-authored work from an original work made by its creator and enhanced with modifications and adaptations made by others. Trautmann clarifies the main conclusions of the court.

 The transfer of a joint work will require the joint consents of all creators, none of which may be unreasonably refused. By contrast, if there is an original work plus enhancements, the original creator controls the transfer. Whether the programmers of the enhancements have any control depends on their authority to modify the work. These are factual issues which the court sent back to the lower court for examination.

 That court will need to determine whether the coders involved after the orginal creation subsumed their contributions to a common overriding development concept, in which case they may be deemed joint authors with the original programmer.


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