Do I have the right to get a copy of the source code I wrote during an internship? (Germany)

Question

I did an internship in a small software company in Germany and wrote mainly two programs, one which is just an example to learn the language which has no monetary value and another one which could be sold by the company if they finish a few remaining parts.

Now the internship is over and I asked my boss for a copy of the source code I personally wrote myself so that I can look up what I learned and have an example for this programming language.

I have no intent to republish the code in any way, including making it open source or selling the code itself or a product made from it. It's just the first stuff I wrote in this language and I would like to keep it as template and example.

He declined my request and said that they never give away their source code.

A quick online research taught me that if a program was written at the employer's disposition, they have the exclusive and full market rights. In my opinion, this sounds like they have the power to decide what I may do with it (e.g. prohibit selling or publishing), but it does not really say anything about the right to own a copy for personal educational purposes.

Other sources also said that the author always holds the inalienable (except through descent) copyright, so I as non-lawyer would interpret this in a way that grants me at least the right to own a copy, even if I may not republish it in any way.

My internship contract did not say anything about ownership and usage rights of the code I write.

I'm not going to fight for this, but I'm interested in my theoretical rights as employed (or internship) programmer. Do I have the right to obtain a copy of all source codes I purely wrote myself? What rules are there concerning this situation?

Answer 1

Germany may be different, however in the United States this would be considered work-for-hire and the employer would be the rightful owner of the source code.

---

Regardless of jurisdiction, and from a more practical point of view, you are better off not having a copy of the source code. Using it as reference or example in the future could easily turn into (unintentional) copyright infringement. If, in the future, you write code you would like to be able to freely keep and reuse in any project, make sure the owner/employer licenses it using something like the BSD, MIT, or ISC license.

Answer 2

According to German Law (§ 69b UrhG), the employer acquires the copyright on the software, if writing the software was the purpose of your employment (ie. you were hired as a software developer and not an accountant etc.). Even though work-for-hire does generally not apply in Germany, in this case you'll probably not be able to ask for the source code.

Answer 3

First, in German law there is a term "Urheberrecht" which is often incorrectly translated as copyright. What it means is that since you wrote the software, you have the right to claim that you wrote it, and nobody else has. This right cannot be sold or taken away. But it has nothing to do with the right to own a copy or to make copies.

Since you were paid to write the software, the company that paid you has the exclusive right to use and commercially exploit it. So they are the only ones who have the right to make a copy. There's no law that says you can't own a copy, but you can only own a copy if someone with the right to make copies creates a copy and hands it to you. So if your employer decides to make a copy and give it to you, fine. If they decide not to make any copy, tough. In that case you cannot own a copy.

Answer 4

This cannot be answered conclusively like that. Read your work contract. Consult a lawyer. Or, well, seeing how the value of that software is probably not worth the expense, forget it.

There is a multitude of paragraphs within the Urheberrechtsgesetz which may apply to your case, and which may -- depending on your work contract -- result in answers which are 100% the opposite of each other.

First, you are without any doubt the Urheber (§7), insofar according to the wording of the following 10 or so paragraphs, you are in principle entitled to some rights, including the right to publish, share, the right to access it for the purpose of making a copy (access, but not take away!) if it's in the possession of someone else, and whatnot.
These rights are first and foremost irrespective of whether they're related to a work relationship or not (§43 states that). These rights cannot be taken away from you.

However, they can be limited or waived. If you have granted an exclusive usage right to your employer according to §31 (1) and (3) then you may have some trouble enforcing your rights as author (read as: terribly bad luck).
Because, well, you are without doubt the author but your employer has all the relevant rights. Unless your employer is a total idiot -- and assume he is not -- there will be (100% certain) such a clause in your work contract. Read it. Read it. Read it.

For computer programs in particular, unless your contract says something different, your employer is solely entitled all commercial rights (§69b). Note the wording "commercial", which means your right to own a copy is in principle not lessened, but they can pretty much publish/license/sell your program however they like whereas you may not despite being the author. Note that it says "unless contract says otherwise", so again... read your contract.

What exactly is applicable and what's not in your situation, I (or anyone) cannot know and cannot tell (and, besides, may not tell even if I knew, it is illegal in Germany, except if (1) I am a lawyer, and (2) you pay me for providing that information).
So, unless you make up your own mind after reading your contract and the law, you'll need to hire a lawyer and spend roughly a hundred Euros (plus, another 300-500 if you decide to proceed, depends on whether it goes to court).

My non-legal recommendation would be: Forget it. They're unwilling to give you a copy and 99% certain they're even entitled to do that, too. It's not worth going through the trouble for something you can trivially re-create.