From time to time, developers are faced with the challenge of wanting to connect their software with established solutions - only to find that the manufacturer is not providing sufficient interface information. The decisive question is then: Can the code now be “dismantled” without being asked to establish interoperability?
Section 69e UrhG regulates this balancing act between the protection of secrecy and freedom of competition in quite detail. The provision allows the licensee to decompile the licensed program code to a limited extent, but only under strict conditions: The aim must be to establish interoperability, the analysis must be limited to the absolutely necessary pieces of code and the required information must not be otherwise available.
When it comes to availability, there is always one question: Does the manufacturer have to be contacted before decompilation? Case law is silent about this; literature is divided. The fact that the question has not yet been resolved by the highest court may be due to the fact that manufacturers often disclose the interface information voluntarily in order to prevent decompilation from the outset.
Section 69e UrhG is to be interpreted narrowly as an exception. It also doesn't help that reverse engineering is generally permitted under Section 3 GeschGehG, as Section 69e UrhG is the more specific standard and thus sets copyright guidelines. Without prior contact attempt, the protection of secrecy intended by the regulation could be undermined. In practice, however, an inquiry from the manufacturer is not that easy. Who can quickly find the right contact person? And what if the answer is incomplete?
In practice, a pragmatic approach is therefore recommended: A formal contact attempt in text form with a reasonable period of time (around 14 days) should be made. If the manufacturer demands a fee for the interface information or refuses to release it completely, this strengthens the justification for subsequent decompilation — after all, the information is then not “readily available.”
By the way, antitrust law may also help. At least if there is a dominant position on the market, it will also be necessary to measure whether a baseless refusal must be accepted against competition law requirements.
