From time to time, developers face the challenge of wanting to connect their software with established solutions—only to find that the manufacturer does not provide sufficient interface information. The crucial question then becomes: Is it permissible to "take apart" the code without permission to establish interoperability? 

Section 69e UrhG regulates this balancing act between the protection of trade secrets and freedom of competition in considerable detail. The provision allows the licensee a limited decompilation of the licensed program code, but only under strict conditions: it must be for the purpose of achieving interoperability, the analysis must be limited to the absolutely necessary parts of the code, and the required information must not be available otherwise.  

Regarding availability, one question always arises: Must the manufacturer be contacted before decompilation? Case law is silent on this, and legal literature is divided. The fact that this question has not yet been clarified by the highest courts may be due to the fact that manufacturers often voluntarily disclose interface information to prevent decompilation in the first place.

As an exception, Section 69e UrhG must be interpreted narrowly. It also does not help that reverse engineering is generally permitted under Section 3 of the Trade Secrets Act (GeschGehG), as Section 69e UrhG is the more specific provision and thus sets the guardrails for copyright law. Without a prior attempt at contact, the protection of trade secrets intended by the provision could be undermined. In practice, however, making an inquiry to the manufacturer is not that simple. Who can quickly find the right contact person? And what if the response is incomplete?

In practice, a pragmatic approach is therefore recommended: A formal attempt to make contact in text form with a reasonable deadline (e.g., 14 days) should be made. If the manufacturer demands a fee for the interface information or refuses to provide it entirely, this strengthens the justification for subsequent decompilation—after all, the information is then not "readily" available.

Furthermore, antitrust law may also be of help. At the very least, in the case of a dominant market position, it will also be necessary to measure whether a groundless refusal to cooperate must be accepted under competition law requirements.

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Christine Knote, LL.M., Salary Partner