Like many IT geeks, my work is also my hobby. This often means that my personal fields of interest are often in the same problem domain as that of my workplace. Recently I decided to thoroughly investigate German copyright law and my work contract after a colleague suggested that I had crossed a line with an open source project of mine. I’m happy to say that after my efforts, I’m quite confident that I’m OK. I am going to share what I learnt, however.

Firstly – a clarification for those who don’t know or get confused easily. Copyright law applies to specific implementations, not to ideas. Also, I am not a lawyer, so ask a lawyer for a legal opinion. :-)

In Germany, copyright always belongs to the individual or individuals who wrote a piece of software. That means that any software I would write for work would have my name associated with the copyright. However, there are different rights associated with copyright. German (and most European) copyright law aims to ensure that the author retains the inalienable moral rights. The second set of rights are the economic rights, which govern how and if the software will be made available to others.

German copyright law states, in UrhG. 69b: “Where a computer program is created by an employee in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all the economic rights in the program, unless otherwise agreed.” (auf Deutsch: “Wird ein Computerprogramm von einem Arbeitnehmer in Wahrnehmung seiner Aufgaben oder nach den Anweisungen seines Arbeitgebers geschaffen, so ist ausschließlich der Arbeitgeber zur Ausübung aller vermögensrechtlichen Befugnisse an dem Computerprogramm berechtigt, sofern nichts anderes vereinbart ist.”)

I interpret this to mean that so long as I don’t write something for work, in order to facilitate my work, or at the instruction of my employer, then I retain the economic rights. Very straight-forward and sensible, isn’t it?

I also assume, although I haven’t seen it stated here, that you shouldn’t use work resources for personal projects, or work on personal projects during work hours. Maybe this is more to do with the typical employment contract than copyright, but I could imagine it forming part of a copyright claim’s justification.

In the event that there is a dispute, however, it is a civil matter that can be dealt with in a number of ways. The suggested way would be to discuss it and reach an amicable solution, rather than involve expensive lawyers and courts. The best solution is to avoid potential disagreements in the first place, by making your company aware of any private projects which could cause problems beforehand. You don’t require their approval, nor do they have the right to deny it, but you should have them acknowledge it, preferably in writing.

The next thing to consider is your employment contract. In Germany, they assign a lot of weight to contracts and quite a lot is allowed (although there are more restrictions when it comes to employment relationships). My work contract, for example, considers work in a certain field to be somewhat “protected”, and for that field I should seek approval from the company before openly releasing any work to the public. Luckily I have little interest in that particular field.

As a general rule, you shouldn’t publish anything openly which could cause harm to your company. It has nothing to do with copyright – but as in any contract, you have a fiduciary duty to protect the interests of the other party, plus it’s just common sense to maintain a good working relationship with your company.

So my friends in Germany, go forth and write software!! :-)

— by Robert Thomson, created 2nd Apr, 2013, last modified 3rd Apr, 2013 | Tags: Tech, World