Immaterialgüter- und Wettbewerbsrecht

Software Linking as Alteration: Framework for Assessment under European Copyright Law

The legal position with regard to incorporating software into another is unclear. This research project seeks to answer whether a copyright holder in a computer program can authorise or prohibit software linking in general, and if yes, to what extent and under what circumstances.

Letzte Änderung: 01.08.11

There is considerable uncertainty as to the legal consequences of software linking, in other words incorporating computer programs by reference, in relation to the law of copyright. The substantive argument made in the project is that, in the European Union, these claims in copyright would be most naturally tested as arguable alteration within the meaning of Article 4(1)(b) of the Computer Programs Directive 2009/24, which provides that the exclusive rights of the right holder include the right to do or to authorise any alteration of a computer program.

Such a proposition raises two issues. The first is a static one: In general, can the act of developing a computer program that makes calls to another program so as to utilise code contained therein constitute alteration in the sense that it would be an act of primary infringement? As the answer would appear to be in the affirmative, the second, more dynamic question must be posed: How, and according to which criteria, should software linking be assessed in practice? The research project proposes a theoretical framework for the above in accordance with the copyright law of the EU.

The methods used in the present project consist of doctrinal research examining data from several jurisdictions in Europe and the United States. This involves legislation and legislative materials as well as case law of both European and national courts, on which the interpretations and systematisations build. The main conclusions will set forth a logical test, consisting both of substance and of form, that proceeds from the existence of a protected work and a restricted act via a balancing stage of substantial

similarity to possible defences. Instead of bright-line rules, the assess-ment must be based on vaguer legal standards.



Pessi Honkasalo


Dr. Kaya Köklü


Prof. Alison Firth; Amanda Cleary


Schutzgrenzen im Immaterialgüterrecht