Market, Management and Profession. Social Business in the Polder

In a recent policy document of the organized employers in the care and welfare sector in The Netherlands (the MO Group), directors and board members of care and welfare institutions present themselves as "social entrepreneurs", managing their institutions as look-a like commercial companies. They are hardly criticized and there is not any countervailing power of significance. The workers are focusing on their own specialized professional fields and divided as a whole. Many government officials are in favour or do not bother. The relatively small number of intellectual workers in Dutch care and welfare are fragmented and pragmatic. From a democratic point of view this is a worrying situation. From a professional point of view the purpose and functions of professional care and welfare work are at stake. The penetration of market mechanisms and the take-over by commercially orientated managers result from unquestioned adaptation of Anglo-Saxon policy in The Netherlands in the 1990's, following the crisis of the Welfare State in the late 1980's. The polder country is now confronted fully with the pressure and negative effects of unbalanced powers in the institutions, i.e. Managerialism. After years of silence, the two principal authentic critics of Dutch care and welfare, Harry Kunneman and Andries Baart, are no longer voices crying in the wilderness, but are getting a response from a growing number of worried workers and intellectuals. Kunneman and Baart warn against the restriction of professional space and the loss of normative values and standards in the profession. They are right. It is high time to make room for criticism and to start a debate about the future of the social professions in The Netherlands, better: in Europe. Research, discussion and action have to prove how worrying the everyday situation of professional workers is, what goals have to be set and what strategy to be chosen.

Software als Schutzgegenstand des Europäischen Urheberrechts

After 20 years of silence, two recent references from the Czech Republic (Bezpečnostní softwarová asociace, Case C-393/09) and from the English High Court (SAS Institute, Case C-406/10) touch upon several questions that are fundamental for the extent of copyright protection for software under the Computer Program Directive 91/25 (now 2009/24) and the Information Society Directive 2001/29. In Case C-393/09, the European Court of Justice held that “the object of the protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code.” As “any form of expression of a computer program must be protected from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its task,” a graphical user interface (GUI) is not protected under the Computer Program Directive, as it does “not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.” While the definition of computer program and the exclusion of GUIs mirror earlier jurisprudence in the Member States and therefore do not come as a surprise, the main significance of Case C-393/09 lies in its interpretation of the Information Society Directive. In confirming that a GUI “can, as a work, be protected by copyright if it is its author’s own intellectual creation,” the ECJ continues the Europeanization of the definition of “work” which began in Infopaq (Case C-5/08). Moreover, the Court elaborated this concept further by excluding expressions from copyright protection which are dictated by their technical function. Even more importantly, the ECJ held that a television broadcasting of a GUI does not constitute a communication to the public, as the individuals cannot have access to the “essential element characterising the interface,” i.e., the interaction with the user. The exclusion of elements dictated by technical functions from copyright protection and the interpretation of the right of communication to the public with reference to the “essential element characterising” the work may be seen as welcome limitations of copyright protection in the interest of a free public domain which were not yet apparent in Infopaq. While Case C-393/09 has given a first definition of the computer program, the pending reference in Case C-406/10 is likely to clarify the scope of protection against nonliteral copying, namely in how far the protection extends beyond the text of the source code to the design of a computer program and where the limits of protection lie as regards the functionality of a program and mere “principles and ideas.” In light of the travaux préparatoires, it is submitted that the ECJ is also likely to grant protection for the design of a computer program, while excluding both the functionality and underlying principles and ideas from protection under the European copyright directives.

Marked Silence, Neo-Feudalistic Reactions and the Stabilized Moral Regime – The Current De- and Reformation of „the Social“

The German chancellor and leader of the German conservative party, Angela Merkel, said in an interview a few weeks ago: “Nobody could have imagined a few months ago to what extent we would be pushed into state intervention programs. Of course, Merkel spoke on, this intervention is not easy for anybody. Therefore, she recommended turning back to the former course as soon as possible” (tagesschau.de, 11. März 2008, zit. nach Bildzeitungsinterview mit Angela Merkel, own translation). The worldwide celebrated new president of the United States, Barack Obama, said in an interview on CBS-News a few weeks before Merkel: “(...) there's no doubt that we have not been able yet to reset the confidence in the financial markets and in the consumer markets and among businesses that allow the economy to move forward in a strong way. And my job as president is gonna be to make sure that we restore that confidence“ (CBS News, 16. November 2008, Obama On Economic Crisis, Transition; http://www.cbsnews.com/stories/2008/11/16/60minutes/main4607893.shtml; Stand: 16. April 2009).