Under Austrian law software (object code, source code and engineering material) is subject to the strict protection under the Copyright Act ("UrhG")if a minimum of intelletual workmanship was involved in its creation. In its legislation the Austrian Supreme Court specified that the Copyright Act is only applicable to software which is either rather complex or requires special knowledge, experience or skills for its develop-ment (Austrian Supreme Court, November 9, 1999, 4 Ob 282/99w). In its subsequent decisions the Austrian Supreme Court decided rather liberal and granted protection pursuant to the Copyright Act in several cases. However, in a recent decision the Supreme Court denied the application of the Copyright Act: An operator of an internet platform for used cars hired a new programmer who should enhance the technical features of the website. The operator insisted that the former design of the platform should be kept. The website the new programmer finally set up was made up of 35 % of the html- and JavaScript Codes of the program of the former software developer. The former software developer thus sued the new programmer for omission and damages based on an alleged infringement of the Copyright Act.
The Supreme Court held that the particular software was not protected by the Copyright Act (January 16, 4 Ob 198/06f): There would only be a limited number of possibilities to program html- and JavaSkript Codes, particularly if the design of the website is already predetermined. Thus, as no intellectual workmanship was involved in the creation of the duplicated sequences, the Copyright Act would not apply. The Supreme Court nevertheless granted plaintiff's claim for omission: By using plaintiff's program sequences defendant saved in total 5.5 hours of his own efforts. Thus, the usage of plaintiff's efforts for his own purposes constitutes a breach of the Unfair Competition Act.
Although the Supreme Court refused protection for html- and JavaScript Codes under the Copyright Act, the particular decision improves software developer's legal position: The Unfair Competition Act grants an additional protection which only focuses on possible cost and time savings of the infringer without considering the quality and complexity of the copied software. |