Concept and Legal Nature of “Soft”
The term “Soft” does not have an independent definition under German law, but it is used in various legal contexts. In particular, “Soft” is significant as a component of compound terms such as “Software” or “Soft Law.” The use of the term “Soft” often refers to a distinction from “Hard,” typically referring to a differentiation between binding and non-binding regulations or between physical and intangible goods. The aim of this article is to provide a comprehensive overview of the different legal aspects of the term “Soft.”
Soft Law
Definition and distinction
The term “Soft Law” refers to norms, standards, or frameworks which, due to a lack of legal enforceability, do not qualify as “Hard Law” (binding law), yet nonetheless exert influence on legal practice. In contrast to laws, ordinances, or statutes enacted by the state, Soft Law comprises rules that do not have immediate legal binding force but may be considered by courts, authorities, and private parties.
Forms of Soft Law
Soft Law can consist, for example, of the following elements:
- Guidelines
- Recommendations
- Codes of Conduct
- Memoranda of Understanding (MoUs)
- Standards and norms of international organizations
Legal Effects of Soft Law
Although Soft Law does not have direct legal binding force, it can indirectly influence lawmaking, the application of law, and legal development. For example, Soft Law rules may serve as interpretative aids for indeterminate legal terms or be used as a consultative basis when evaluating facts. They can also form the basis for drafting contracts and internal company policies.
Soft Law in International Law and European Law
In international and European law, Soft Law holds particular practical importance due to the frequent non-binding nature of international agreements and memoranda of understanding. Organizations such as the European Union often utilize Soft Law in the form of recommendations, guidelines, or communications to advance harmonization of the internal market without immediately enacting formal secondary legislation.
Binding Effect of Soft Law
Soft Law can indirectly have a binding legal effect:
- Self-binding of the administration: Authorities may in practice bind themselves by repeatedly applying Soft Law rules.
- Transformation into Hard Law: Elements of Soft Law may become binding through subsequent lawmaking.
- Contractual agreements: Soft Law may develop indirect binding effects by being included in contracts or statutes.
Soft as a Component of Intellectual Property Rights
Software
The term “Soft” is found particularly in the context of “Software,” which, according to §§ 69a et seq. UrhG, is protected as a computer program. Software constitutes intangible property and is therefore subject to the copyright provisions. The special features of software law include, for example, questions involving acquisition, use, and the distinction from “Hardware” (physical components).
Legal classification
Under German law, software is protected as a distinct type of work, provided it is the result of the author’s own intellectual creation. Special protective provisions secure the holder’s comprehensive exploitation and usage rights, including licensing, distribution, and protection against unauthorized reproduction.
Soft Token / Soft Certificate
In the field of digital authentication, a distinction is made between “Soft Tokens” (software-based security solutions, e.g. for two-factor authentication) and “Hard Tokens” (physical components such as smartcards). Soft Tokens or Soft Certificates are subject to statutory provisions concerning IT security and data protection, particularly under the General Data Protection Regulation (GDPR) and the IT Security Act.
Soft in Contract Law
Contractual Content and Soft Skills
In contract law, “Soft” may be used as an adjective, particularly to describe “soft” or not precisely defined contractual content, such as:
- Service descriptions (“Soft Term,” “vaguely worded contract clause”)
- Requirements for so-called “soft skills” of employees in employment contracts
Contracts may contain soft provisions, such as option rights, non-binding targets, or flexibility clauses. The interpretation of such clauses follows the general principles of §§ 133, 157 BGB, whereby the discernible intention of the parties is decisive.
Soft in Legislation and Jurisprudence
Soft and hard legislation
In the German rulemaking process, the distinction between soft and hard regulations plays a role, particularly when drafting administrative guidelines, decrees, and recommendations. The latter serve as internal instructions without direct external effect for citizens, but can nevertheless significantly influence administrative practice.
Judicial Consideration
Courts may refer to Soft Law or other non-binding frameworks when interpreting statutes or indeterminate legal terms, for example in European law or in international circumstances. Such consideration is part of legal methodology and serves to align and harmonize case law.
Soft in Corporate and Capital Markets Law
In corporate law, Soft Law instruments such as corporate governance codes play a role. These codes contain recommendations and guidance that companies may implement voluntarily in the interest of risk management and transparency. In capital market law, Soft Law is particularly widespread in connection with “comply or explain” mechanisms: Companies are required to indicate whether and how they implement voluntary standards.
Significance of Soft Law in Practice
The importance of Soft Law is increasing with the growing international interconnectedness and rapid technological developments. Soft Law significantly influences the interpretation of legal norms, contract drafting, and business practice both in national law and at the European and international level.
Summary
The term “Soft” in legal science has numerous facets and is often understood as a distinction from binding, strictly structured statutory provisions. In particular, within the context of Soft Law, intellectual property rights, IT security law, contract law, and corporate law, the term plays a central role. With its function as an informal, non-binding, yet legally and practically powerful regulatory structure, Soft Law is a defining element of modern legal systems and warrants differentiated consideration in the legal context.
Frequently Asked Questions
Who is entitled to copyright protection of software in Germany?
Copyright protection of software in Germany is generally governed by the Copyright Act (UrhG). According to Section 7 UrhG, the actual creator of the software is entitled to protection, which is typically the programmer or development team responsible for the creative process. If software is developed within an employment relationship, the economic usage rights are transferred to the employer in accordance with Section 69b UrhG, unless otherwise contractually agreed. In this sense, the employee remains the author, but the employer receives the economic exploitation rights to the software. When contracts are awarded to third parties (e.g., freelancers), an explicit contractual regulation for the transfer of rights is essential, as otherwise the rights may remain with the developer. Special considerations apply in the international context, especially when outsourcing abroad, requiring careful examination as to whether German law applies and how the transfer of rights is specifically regulated.
What are the requirements for copyright protection of software?
Software is protected under German law if it constitutes an “own intellectual creation” according to Section 2(2) UrhG. This means that a certain degree of individuality and creativity must exist; a mere compilation of trivial or pre-existing code segments does not qualify for protection. Functional programming, standard solutions, or basic algorithms are excluded from protection. Protection applies to both source code and object code, but not to underlying ideas, mathematical methods, or interface conventions. Documentation and graphical user interfaces may also be protected if they are independently creative. If there are doubts about the existence of sufficient creativity, an intensive case-by-case examination considering court decisions must be carried out.
To what extent is reverse engineering of software permitted under German law?
Reverse engineering is generally governed by the Copyright Act (specifically Section 69e UrhG) under German law. Creating backup copies, observing, studying, or testing the functioning of programs for the purpose of interoperability, bug fixing, or adaptation is permitted under certain conditions, provided this is done within the scope of intended use of the program. The knowledge gained may only be used for achieving interoperability and not for creating a directly competing product. Further decompilation or use of code components is only permitted under the statutory exceptions. Any commercial use of the information obtained, outside the legally provided exceptions, may constitute copyright infringement and result in civil and criminal consequences.
What liability risks exist when using open-source software?
The use of open-source software carries specific liability risks. Many open-source licenses explicitly exclude warranties or liability for damages; however, this does not affect the user’s liability for their own use. Infringement of license terms, such as violation of copyleft clauses (e.g., failure to disclose modifications with GPL software), can result in warnings, injunctions, or claims for damages by the original rights holders. When integrating open-source components into proprietary software, all license obligations must be followed exactly and demonstrably. Improper use can also lead to compatibility issues with proprietary elements, or to the unintended “open-sourcing” of one’s own software if required by the license. For redistribution (especially in a commercial context), it is always advisable to carefully review and document the license chain.
What regulations apply to the resale of used software licenses?
The European Court of Justice has ruled in the so-called “UsedSoft decision” (C-128/11) that the resale of used software is generally permissible, provided the license was originally brought to market in the European Union with the consent of the rights holder. The first purchaser must render every personal copy unusable so that the distribution right is not exhausted. The transfer can take place regardless of the physical data carrier, and downloads are also included. Contracts seeking to prohibit resale are generally invalid in this context if they contravene EU law. Particular legal challenges arise with volume or multiple licenses, where it is often unclear whether a partial sale is permissible. License terms and technical control mechanisms must therefore always be checked for legality.
To what extent is software patentable?
Under European and German patent law, software solutions as such are generally not patentable. According to Section 1(3) No. 3 Patent Act and Art. 52(2) EPC, programs for data processing systems “as such” are excluded from patent protection. However, software patent protection may be obtained if the software provides a technical solution, i.e., if it, in combination with technical hardware, brings about relevant innovations that go beyond mere data processing or business methods. The decisive factor is the so-called “technical teaching,” which results from the interaction of software and technology. Examples include new communication protocols or safety-critical control mechanisms. The patent application must specifically address this technical innovation; mere algorithms, mathematical formulas, or abstract methods remain excluded from patentability. The hurdles in the patent granting process are accordingly high.
What must be considered when employees use company software in regards to labor law?
The use of company software by employees is regularly regulated by license agreements and internal policies. Employers are required to ensure that only licensed software is used and that license terms (e.g., number of users, installation locations, extent of use) are observed. Employee violations can result in significant claims for damages against the company. Employees are contractually obligated to comply with the guidelines, and violations (e.g., installation of illegal or private software) may result in labor law consequences up to and including termination. From a data protection perspective, it must be ensured that the software does not process or store unauthorized data. When introducing new software, employee representatives (works council) must be involved and any co-determination rights (for example, when introducing monitoring software) must be observed. In addition, IT security policies must be regularly issued to avoid liability risks.
