German Copyright Laws

[Anastasios Hatzis]

Yaakov Nemoy wrote:
> Hi all,
>
> I'm looking for some simple legal advice before I have to speak to a
> laywer about this.  I'm unfortunately not very familiar with the
> German Copyright Laws, so this will be a bit difficult for me.
>
Since I'm not a lawyer I can't provide you with legal advice. But I can 
provide you with some information based on my experiences and legal 
issues I had. As far as I understand German copyright law, labor law, 
and the GPL - if I'm wrong, please correct me:

German copyright law is still rather different from US or UK law. One of 
the biggest differences you will see is that German law knows 
'authorship'. The authorship concept is also known in France, Italy, 
Benelux, etc. Other than in US copyright an author can't assign his/her 
authorship on a work to another party, but granting another party rights 
to market, sell, distribute, use, etc. his/her work. In general I would 
say that authorship concept is strengthening authors. If the work is 
created in an employment relationship the issue is getting more 
complicated. I would say that in any case it's recommended for both 
parties to have a clear agreement on the ownership and who has which 
rights on the work resulting from the employment.

FSF Europe has a Fiduciary Licence Agreement (FLA) and in the documents 
regarding the FLA and in the FLA you will find more details on that 
issue: http://www.fsfeurope.org/projects/fla/fla.en.html

> I'm working on a small project (for now) for an internship that, under
> the terms of my contract, falls under the company's copyright.
> Convincing them to make an open source (GPL v2) release will be no
> problem, but I have a question about ensuring the future of my
> project.  As the project will be open source, how can I make a copy
> under German law?  If my firm decides to close up the source later, do
> I have the rights to make a fork of the last open version?  More
> importantly, who has the copyrights to the forked version?
>
For the following considerations I assume that the purpose of your 
internship employment is the initial work on this project - and that 
neither you nor your employer based this work on a GPL'd work already 
existing.

If the company is releasing your work under GPL v2, your permission 
given, they can't undo this after they published the sources (let's say 
'Foo 1.0') under GPL. This means: anyone who received a GPL'd copy of 
the Foo 1.0 sources distributed intentionally by your employer is a GPL 
licensee of this work and regarding this work has the rights and 
restrictions given by GPL, naturally regarding this specific release Foo 
1.0. So, if the sources are distributed by your employer under GPL, get 
them and become a licensee!

You likely can't prohibit your employer from closing the source in the 
future - if you have not this option in your contract. But you will have 
the GPL'd Foo 1.0 sources (or you can get a copy of them from a 
licensee) and you may be able to continue working on them - and, if you 
also publish it, you then must release under GPL (say Fork 1.0). Your 
employer of course probably can close the source or publish it 
additionally under other licenses, e.g. dual-license concept.  Also your 
employer can take Foo 1.0 (or a later version Foo 1.1 and distribute it 
exclusively as closed source and solely under proprietary license, 
because this would not violate GPL.

Exception: It would violate the GPL if your employer is not the only 
original author and got the work (Foo 0.5) or part of it already under 
GPL from you (or others) and you continued development of the work to 
Foo 1.0 during your labor relationship (which probably is fixed in your 
contract). A work which is derived from GPL'd work has to be published 
also under GPL if distributed.

Good luck

Anastasios