Interoperabilität von Software Art. 6 der Comperterprogramm-Richtlinie aus heutiger Sicht

This article reviews Article 6 of the Software Directive and discusses the need for a revision. Beyond clarification of the scope of the very limited provision on reverse engineering, it seems that the introduction of the clause into copyright was unfortunate. The indirect protection of ideas by prohibiting reverse engineering is foreign to the copyright concept. Permitting reverse engineering altogether would promote research and development and further other goals like ICT security. Innovation would not be retarded, which is the reason why US trade secret law permits reverse engineering based also on economic arguments. The notions of compatibility Article 6 tries to address are better dealt with by Competition Law, which was demonstrated by the Microsoft Decision of the European Court in 2007.

The EU’s Trouble with Mashups: From Disabling to Enabling a Digital Art Form

New tools for editing of digital images, music and films have opened up new possibilities to enable wider circles of society to engage in ’artistic’ activities of different qualities. User-generated content has produced a plethora of new forms of artistic expression. One type of user-generated content is the mashup. Mashups are compositions that combine existing works (often) protected by copyright and transform them into new original creations. The European legislative framework has not yet reacted to the copyright problems provoked by mashups. Neither under the US fair use doctrine, nor under the strict corset of limitations and exceptions in Art 5 (2)-(3) of the Copyright Directive (2001/29/EC) have mashups found room to develop in a safe legal environment. The contribution analyzes the current European legal framework and identifies its insufficiencies with regard to enabling a legal mashup culture. By comparison with the US fair use approach, in particular the parody defense, a recent CJEU judgment serves as a comparative example. Finally, an attempt is made to suggest solutions for the European legislator, based on the policy proposals of the EU Commission’s “Digital Agenda” and more recent policy documents (e.g. “On Content in the Digital Market”, “Licenses for Europe”). In this context, a distinction is made between non-commercial mashup artists and the emerging commercial mashup scene.