Data and databases in software part 2
Connection of part 1
2) Protection of data and databases
First of all, we need to look at the general considerations behind copyright law. First of all, the Copyright Act aims to protect a person's particular creative achievements: That is the work, § 2 I UrhG. On the other hand, the Copyright Act does not want to monopolize ideas. Individuals should be granted certain monopoly positions with regard to economic exploitation rights and other rights (naming, access to the work, etc.), but the monopoly position should not be comprehensive. The national economy has a great interest in ensuring that no monopolies are formed. This can be seen wonderfully in the regulations on software, where Section 69a UrhG stipulates that the code for implementation is protected and then goes on to state in a further paragraph that ideas are not eligible for protection. It is the specific creative implementation that is protected, not the idea of the technical requirement.
From this consideration with regard to data: Data is only protected by law if it is based on a sufficiently creative act. The information that it is raining in Hamburg cannot be monopolized in weather services. Anyone can report on it. Anyone can photograph sunsets, etc. And secondly, it is the result of human activity that is protected, not the act of a machine. There is a controversial (and political) debate about the extent to which results produced by the auxiliary work of a machine are copyrightable. Otherwise, the owner of good software would at some point hold a number of monopolies for the results of his machine, which would be bad for the economy as a whole.
The threshold at which data itself is protected by copyright is difficult to draw in the abstract. A single sentence from this text will not itself be copyrightable, but whole passages of this text will be. This means that copying individual sentences from general terms and conditions will not be an infringement of copyright, but copying general terms and conditions as a whole or passages from them unchanged will require explanation. The question of the economic value of the data is not relevant for legal consideration. The GPS data of John Silver's Treasure Island will be worth a lot of money; from a legal point of view, GPS data does not involve a creative act.
This applies to individual data. It is different for collections of data.
If a lot of data itself is edited and arranged in a very creative and original way, a collective work can be created and if a database is systematically and technically produced with a lot of money, this can mean protection. § 4 UrhG- See here: https://www.gesetze-im-internet.de/urhg/__4.html. Such collective works are relatively rare, the Brockhaus or similar works are meant.
In addition to the database works according to § 4, there is also the protection of the database itself according to § 87a UrhG. And here the investment in the arrangement and collection of data itself is actually protected. Immmo24 etc. are databases. The largest database in the world is probably google. Anyone who doubts that: There was once a German search engine for the internet (Metager) that queried several existing search engines for a search: in reality, the databases of the other search engines were queried and as this was done without the consent of the search engine operators at the time, the service was banned. The term search engine is actually incorrect: the services not only search, they also store information in a database. The search we experienced takes place in the database (the crawlers do not start their work with the search query).
Conversely, individual entries in Google's database would not be protected. The question of which information can be found on which URL is not a creative act.
For us, this means that since data is not so well protected by law, but orders and databases already provide better protection, you have to arrange your data in such a way that the law also applies.
3) The license for the database is often forgotten.
As our customers usually retrieve the data in a structured and electronic process using their own software in a large number of cases, many customers have already created a database. What is then often forgotten is the independent protection of the database in addition to the protection of the software.
For the lawyer, software is the application that tells the computer what to do. Data is stored information. Software is protected according to §§ 69aff. UrhG, databases are protected according to the standards mentioned above. The requirements and legal consequences are different. Therefore, the use of the software can be contractually regulated differently than the use of the database.
The software is about which software can be used in what quantity and in what way. For example, in the case of a SaaS contract, 30 simultaneous accesses may access the software for the term of the contract. If nothing else is expressly stipulated, the licensing of the database is based on Section 31 (5) UrhG. This interpretation rule states that the customer only ever receives the rights of use that are necessary to achieve the purpose of the contract. What is therefore prohibited by law is the complete reading of the database by electronic means. This means that the database may not be made usable for other software via an interface.
But you can also design many other things
For example, you can prohibit more than 10 calls to the database per day without further remuneration, etc. I can well imagine the objections of the sales department. At this point, it's not about making a decision, but first of all about showing existing possibilities
