Pursuant to Sec. 69d para 3 German Copyright Act (UrhG, implementing Art. 5 para. 3 EU Directive 2009/24/EG), the legitimate user of a computer program protected by copyright is entitled to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any program element. This applies regardless of possible restrictions imposed by a license agreement, as far as such acts are necessary for loading, displaying, running, transmitting or storing the program (see CJEU, judgment of 2/5/2012 – C-406/10 – SAS Institute, regarding Art. 5 para. 3 Directive 91/250/EEC (now: 2009/24/EC) and ref. 14). The actual program idea or functionality as such is not covered by copyright protection.

Subsequently, the German Federal Court of Justice (Bundesgerichtshof – BGH) has now clarified that the exception pursuant to Sec. 69d para. 3 UrhG also applies in those cases, in which the software user carries out a program analysis for commercial or professional purposes even if the license agreement allows a software use only for private purposes (BGH, judgment of 6/10/2016 – I ZR 25/15 – World of Warcraft I). The case at hand dealt with the distribution of a bot software for the computer game “World of Warcraft”, with which players could automatize certain game routines for its play character in order to achieve its quicker progress in the gameplay. For developing and testing that bot software, the defendant carried out such analysis and testing of the computer game, which, according to the Court, was covered by Sec. 69d Abs. 3 UrhG.

Nevertheless, the use of the client software as a whole was not justified. As the Court states, the exception pursuant to Sec. 69d para. 3 UrhG merely extends to usages of the computer program as such, but not to reproductions of the audiovisual game data of the software client, as far as such elements also enjoy copyright protection. Since such complex matter comprised not only a computer program but also graphic and sound elements (see CJEU, judgement of 23/1/2014 – C-355/12 – Nintendo), the right holder was entitled to exclude or restrict such usages in the license agreement.

So, as far as a software also includes audiovisual components, either protected as copyright work (e. g. literary works, musical works, photo- or cinematographic works) or by related rights (e. g. photographs or films), the exception of Sec. 69d para. 3 UrhG does not extend to such type of works. The same applies to computer program specific exceptions under Sec. 69d para. 1 UrhG (implementing Art. 5 para. 1 Directive 2009/24/EC) concerning acts necessary for the use of the computer program (see: BGH, judgment of 19/11/2015 – I ZR 151/13 – Gesamtvertrag Unterhaltungselektronik).