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Contrary to the provisions of the German law and art. 1 of the Council Directive 91/250/EEC of 14 May 1991 on the Legal Protection of Computer Programs (Council Directive on Protection of Computer Programs) (Section 69a of the German Copyright Act merely states which stages of development are protected as computer programs) Part Four of the Civil Code contains a definition of a computer program. Art. 1261 of the Civil Code provides that a computer program is a set of data and commands presented in objective form for the functioning of a computer and other computer devices in order to obtain a certain result, including preparatory materials obtained during development of a computer program, and generated by it audio-visual displays.
- Therefore, the term „computer program” includes:
- preparatory materials obtained during development of a computer program;
- audio-visual displays;
- source code;
- object code.
It is worth to mention that the Council Directive on Protection of Computer Programs „does not exclude logic, algorithms and programming languages from copyright protection per se, but only to the extant that they comprise ideas and principles.1 Any decision in this respect will have to be made in each individual case”.2
2. The definition of a computer program eligible for copyright protection under Russian law has a requirement that a computer program has to be created „in order to obtain a certain result”, thus a computer program has to have a certain purpose (function), but art. 1259 of the Civil Code contains a general provision that a work is eligible for copyright protection regardless of its purpose. Therefore, a computer program, the purpose of functioning of which is not to obtain a certain result, can be a copyright protected work but not as a computer program.
3. One of the controversial issues for the harmonization of computer programs protection in EU under copyright law was criterion of originality. The aim of the art. 1 (3) of the Council Directive on Computer Programs, which provides that a computer program shall be protected if it is its author’s own intellectual creation, „was to harmonize the all too divergent standards of protection in the different Member States, especially with regard to the high originality standard in Germany”.3
- Requirements for copyright protection under German law after the implementation of the Directive on Protection of Computer Programs:
- the author's own intellectual creation;
- „Kleine Mьnze” principle.
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Sec. 69a(3) – even the „small change” of computer program should enjoy copyright protection.
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Russian law does not have special provisions concerning the requirements of originality for copyright protection of computer programs. There is a general rule which has been developed by judicial practice that a work is eligible for copyright protection if it is new, creative and original. The requirement of novelty, creativity and originality has not been yet addressed in judicial practice under the new provisions of the Civil Code.
4. According to art. 7 of the Russian Copyright Law (Law on Author’s Rights and Neighbouring Rights), which had been in force before Part Four was adopted, of July 9, 1993 protected works were defined as scientific, literary and artistic works, which are the result of personal intellectual creation, notwithstanding of their purpose, artistic merit and the form of expression.
The definition of the work eligible for copyright protection in art. 1259 paragraph 1 of the Civil Code does not contain the requirement that the work has to be the result of personal intellectual creation, it merely states that the objects of copyright protection are scientific, literary and autistic works notwithstanding of their purpose, artistic merit and the form of expression.
1 Recitels, OJ C122, 17 May 1991, at 43.
2 Thomas Dreier The Council Directive of May 14 1991 on the Legal Protection of Computer Programs. 9 EIPR. 1991.
3 Thomas Dreier The Council Directive of May 14 1991 on the Legal Protection of Computer Programs. 9 EIPR. 1991.
