Traditionen, Utopien, Dekonstruktionen - die Sozialstaatskonzepte des 'Ostblocks' (1945-1990)

The welfare state concepts in Eastern Europe under state socialism (1945-1990) were based on the conviction that only the state was responsible for solving all social problems. The 'bourgeois' manners of individual care were substituted by general measures in the field of labour- and family politics, as well as urban development. The experience showed however that this way of substitution was an illusion, because certain target groups were still in need of help (for example ill or handicapped children and adults, elderly people etc). Nevertheless, most of the Eastern European countries - with the exception of Yugoslavia - decided to abolish the existing forms of professional social work and the training for social workers. Instead, they invented 'surrogate structures' to manage the care for the 'needy': Various institutions and occupational groups (schools, hospitals and ambulances, employees groups etc.) took over the tasks of social workers and were trained to fulfil this as a kind of 'social practice'. Therefore, it is wrong to claim that social work was completely abolished under state socialism, But: as social work 'as such' did not exist any longer, it is more reasonable to speak of welfare state concepts, including social policy on one hand, and non- or paraprofessional social practice on the other. To characterize the effect of these welfare state concepts three parameter of interpretation seem to be useful: 'traditions', 'visions', and 'deconstructions' - embedded in a system of repression as well as incentives. Traditions: The huge 'social laboratory' that was installed was not a totally new one - it still carried on the heritage of the bygone: some bourgeois traces as well as elements out of the fascist heritage and -last but not least - the traditions of their own socialist movement. Visions: The socialist traditions included visions of social justice, the creation of a 'new mankind', a classless society, the end of exploitation and a peaceful living together of all people. Although the 'real existing socialism' has destroyed most of these visions, the power of these utopian ideas has outshined a lot of the every day’s misfortune and injustice for quite a long time. Deconstructions: The term of 'deconstruction' has a threefold meaning: the deconstruction of professional welfare, the deconstruction - in the sense of reinterpretation - of the socialist ideals such as social justice and social security, making an instrument of inclusion and exclusion out of it. And the deconstruction that is necessary to free the history of social work under state socialism from the prejudices and distorting practices, from both sides, the east and the west. In the contribution these three parameter of interpretation are applied on the following issues: The gaps in the 'overall system' of social security; working morale and education for work; mass organisations as an instrument of egalitarianism and general prevention; de-professionalisation by 'surrogating' social work; the 'transparent client'; church as refuge or 'state organ'; women’s politics as bio-politics.

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.