employment germany open-source-software
How to legally contribute to open source projects (and other public stuff) in Germany?
<p>Being a software developer it is very important to contribute to public projects and participate in public professional activities. This includes open source projects (which may belong to other companies or a developer himself), Stack Overflow answers, hackathons and other meetings, professional blog publishing, TopCoder contests participations, etc.</p>
<p>Moreover, links to GitHub and StackOverflow accounts have become a common item in IT resumes.</p>
<p>I'm going to work in Germany in a position of Software Developer. My employer tells me that EVERY professional activity belongs to the company and for EVERY activity I mentioned before I need to get written permission, which could be withdrawn at any moment. And it doesn't matter if I do it on my free time on my computer at home or not.</p>
<p>Citation from my contract:</p>
<blockquote>
<p>(1) Der Mitarbeiter darf ohne Zustimmung von COMPANY_NAME keine gewerbsmäßigen ader nicht gewerbsmäßigen fort dauernden oder gelegentlichen Konkurrenz Geschäfte für eigene oder fremde Rechnung unmittelbar oder mittel- bar betreiben oder sich daran beteiligen oder solche Dienste in irgendeiner Art oder Form leisten. Das gleiche gilt für jede Art der Beteiligung an einer anderen Firma sowie für die Mitwirkung in Organen einer anderen Gesellschaft, es sei denn, es handelt sich um die Beteiligung an einer börsennotierten Gesellschaft bis zu einem Umfang von 5 %, solange mit dieser kein Stimmrecht einhergeht.</p>
<p>(2) Gewerbsmäßige Nebentätigkeiten bedürfen der schriftlichen Genehmigung von COMPANY_NAME. COMPANY_NAME kann die Genehmigung jederzeit widerrufen, wenn seine Interessen durch diese berührt werden</p>
<p>(3) Zu Veröffentlichungen und Vortragen bedarf es der Einwilligung von COMPANY_NAME, wenn dadurch seine Interessen berührt werden können.</p>
</blockquote>
<p>I find it a little bit weird to get written permission from employer to write an answer on Stack Overflow or to participate in development of open source game with friends in my spare time.</p>
<p>But my employers tells me this is OK. Moreover, they're trying to convince me that clauses above are pretty standard for Germany and exist in almost every contract with any company.</p>
<p>So the question: <strong>is it really so strict in Germany? What is the most legal way to participate in public activities in such situation?</strong></p>
<p>PS I fully understand that answers are not official legal advice, so feel free to share opinion.</p>

<p>(IANAL, of course)</p>

<blockquote>
  <p> My employer tells me that EVERY professional activity belongs to the company and for EVERY activity I mentioned before I need to get written permission, </p>
</blockquote>

<p>That's true for software (and inventions) that may be <em>relevant</em> for them, but not for other professional activities. </p>

<blockquote>
  <p>which could be withdrawn at any moment. </p>
</blockquote>

<p>No, not in that very general sense. </p>

<ul>
<li><p>they can give the permission to publish possibly relevant pieces of code on SX, and they can withdraw that permission for the future. But they cannot take it back for the past. </p></li>
<li><p>Once they tell you they don't want your invention, there's no way back from that decision (and there are legal deadlines for claiming relevance).</p></li>
<li><p>Even if they require written permission for you to take a side job, they must give it unless they can show a valid reason against you taking the side job in question. And that would be a per-side-job decision.  </p></li>
</ul>

<blockquote>
  <p> And it doesn't matter if I do it on my free time on my computer at home or not.</p>
</blockquote>

<p>That is indeed the case for copyright of software and for inventions. </p>

<hr>

<ol>
<li><p>clause is to protect your employer from you helping anyone who is their competitor/you being their competitor while the employment lasts. This is pretty standard and, I believe, not only legal but would be the case also if they had not spelled out this to you. The lines between what is and what is not competition are sometimes a bit complicated*<br>
So, if your employer specializes in subway station surveillance systems and you work on face recognition and then help out your local pigeon breeder's association <em>by implementing automatic door opening by camera + automated face recognition of the [unwinged] members</em> that's close enough to touching the interests of your employer that I'd consider it off-limits unless you had talked to your employer and they are happy with this project (after all, they could be preparing similar products unknown to you).<br>
OTOH, overhauling the crappy Excel macros for the regional annual breeder's competition would be fine. And in general, the lower your position there and the further from the actual focus of the company, the more normal it is to have another job (think janitors, canteen staff of a software company as opposed to a janitor in a hire-a-janitor-service company)</p>

<p>The general duty not be in competition with your employer also in general prevents you from being involved in a competitor business to the extent that you have noticable influence over that competitor. So the second part of clause 1 shouldn't be too surprising, neither.<br>
<em>(update)</em> OTOH, what <em>may</em> make this particular clause invalid is the requirement also for publicly traded shares that they cannot come with voting rights. I somehow suspect that thus prohibiting you from "normal person small scale ownership" of publicly traded stocks (not all of them even have non-voting shares) is undue and invalid (too broad a restriction). However, if  that clause is invalid the legal default of "no competition to employer" still applies. </p>

<ul>
<li>Here's a (German language) <a href="https://www.arbeitsrechtberlin.net/wettbewerbsverbot/wettbewerb-des-arbeitnehmers/" rel="nofollow noreferrer">web site of a lawyer that discusses these questions</a></li>
<li>See also here <a href="https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Handbuch_Wettbewerbsverbot.html" rel="nofollow noreferrer">https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Handbuch_Wettbewerbsverbot.html</a></li>
</ul></li>
<li><p>Unlike the 1st clause, this is AFAIK not a spelled out default of German employment law, but it may be a spelled out version of a Tarifvertrag (unionized group contract). In any case it is probably legal to have this clause in the contract. The point is that the employer can only forbid the side job if it is against their reasonable interests, a general "no side jobs whatsoever" would be invalid.<br>
Side note: they may even be of the opinion that employment law forces them to have some such clause: the employer has a legal responsibility to ensure that you are not working more than the number of hours allowed by law. 
I've had such a permission that stated the constraint that the permission is valid only as long as I ensure that I stay within those legal limits and my working ability for employer is not compromised.  </p>

<ul>
<li><a href="https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Handbuch_Nebentaetigkeit.html" rel="nofollow noreferrer">https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Handbuch_Nebentaetigkeit.html</a></li>
<li><a href="https://www.fachanwalt.de/ratgeber/nebentaetigkeit-als-arbeitnehmer-anmelden-zustimmung-und-muster-antrag" rel="nofollow noreferrer">https://www.fachanwalt.de/ratgeber/nebentaetigkeit-als-arbeitnehmer-anmelden-zustimmung-und-muster-antrag</a></li>
<li><p><a href="https://www.haufe.de/personal/arbeitsrecht/top-thema-nebenbeschaeftigung/nebentaetigkeit-und-arbeitsrecht-was-erlaubt-ist_76_418602.html" rel="nofollow noreferrer">https://www.haufe.de/personal/arbeitsrecht/top-thema-nebenbeschaeftigung/nebentaetigkeit-und-arbeitsrecht-was-erlaubt-ist_76_418602.html</a></p>

<ol start="3">
<li>Copyright law for employees in Germany is somewhat difficult.</li>
</ol></li>
<li><p>the one exception is copyright of software where <a href="https://www.gesetze-im-internet.de/urhg/__69b.html" rel="nofollow noreferrer">§69b UrhG</a> transfers the transferrable rights automatically to the employer. <em>Whether the software is written out of office and outside working hours is irrelevant, as long as it is done in "fulfillment of the employee's role or the employer's orders"</em> <a href="https://openjur.de/u/107418.html" rel="nofollow noreferrer">(famous court case)</a>  </p></li>
<li><p>so again, if at work you code facial recognition systems and in the evening the pigeon breeders accounting system, the latter is not related to your work. Your open source game is also OK unless you are employed as game developer.   </p></li>
<li>Also that not all code is subject to copyright. An obvious explanation on SX explaining a typical pattern would not be a creative work (though the full answer may very well be) in the first place. </li>
</ul>

<p>But for creative works other than software such as plans how to implement features, technical drawings, etc. working hours or not seems to be more important for assigning the rights and the rules seem to be more similar to <a href="https://www.gesetze-im-internet.de/arbnerfg/" rel="nofollow noreferrer">employee invention law ArbnErfG</a>): if it is outside working hours and possibly relevant for the employer, the employee has to offer it to the employer before trying to sell to someone else.<br>
The clause that employer must give permission to publication of content that is possibly relevant for them seems to me to be in line with these general rules. </p>

<ul>
<li><a href="https://www.zeit.de/karriere/beruf/2011-06/arbeitsrecht-urheberrecht" rel="nofollow noreferrer">https://www.zeit.de/karriere/beruf/2011-06/arbeitsrecht-urheberrecht</a></li>
<li><a href="https://eventfaq.de/25510-urheberrechte-im-arbeitsverhaeltnis/" rel="nofollow noreferrer">https://eventfaq.de/25510-urheberrechte-im-arbeitsverhaeltnis/</a></li>
<li><a href="http://www.urheberrecht-leipzig.de/urheberrecht-nutzungsrechte-des-arbeitgebers-an-kreativen-leistungen-der-mitarbeiter.html" rel="nofollow noreferrer">http://www.urheberrecht-leipzig.de/urheberrecht-nutzungsrechte-des-arbeitgebers-an-kreativen-leistungen-der-mitarbeiter.html</a></li>
</ul></li>
</ol>

<hr>

<p>* I've been advised in a situation where I still believe I was not competing, and even had a written permission, that this is the stuff that makes lawyers rich, and both employee and employer poor.... </p>

<p><strong>Take home message: even if you believe to legally have the right to publish on SX/contribute to an open source project, think again whether you'd want this to be the source of a conflict with your employer - or whether there isn't a win-win possibility that makes everyone happy instead.</strong> </p>

<blockquote>
  <p>What is the most legal way to participate in public activities in such situation?</p>
</blockquote>

<p>I'd advise to be open about what public activities you'd like follow. Whatever the contract says, your employer can always give your more permissions.  </p>

<p>In the past, <strong>I've found the majority of employers being happy to see me contributing</strong> (some had similar clauses to yours and just wanted to know, some was happy about an open source project I brought, some like to be able to say where their employees volounteer, etc.). </p>

<p>Although there was one who wasn't (and that did contribute to my decision to leave there). From that experience, I'd personally discuss this early on now: in case the employer turns out to be too intrusive (speak to Betriebsrat or lawyer or your union if you have one to make sure they really overstep their rights) for my liking, for me that would be a reason to cancel the contract which is easier &amp; faster during probation period. </p>

<p><strong>tl;dr</strong> As long as you're talking about unpaid activities in your free time not involving company know-how, you'll be fine.</p>

<hr>

<p>I think you're confusing "professional activities" with "activities related to your profession". </p>

<p>In a nutshell, your contract says that you can not do <em>paid</em> work (as salaried employee, contractor etc.) for other companies or be a major shareholder of a company without the express permission of your employer.</p>

<p>The rationale for these clauses is that your employer wants you a) to devote your limited working capacity only to your main job instead of, say, working night shifts coding as a contractor and coming into work tired the next morning and b) to avoid conflict of interest (knowledge transfer to competitors etc.). Your employer is right about the clauses being standard; similar paragraphs are part of every working contract I've seen in Germany, regardless of industry.</p>

<p>I believe that none of the activities you mentioned (contributing to OSS, answering here on SO, contests, blog publishing, meetings) need permission from your employer as long as they do not  involve very specific technical knowledge relevant to your job or your employer's intellectual property.</p>

<p>I would be very surprised if your employer actually told you that <em>"EVERY activity [you] mentioned before"</em> needs written permission, especially since your list of activities includes <em>"etc."</em>. If in doubt, speak to your employee organization ("Betriebsrat"), your union, or an employment law expert.</p>

<p>On an unrelated note, I don't believe that <em>"it is very important to contribute into public projects and participate in public professional activities"</em> for your career as a software developer, at least in Germany. In my experience, what employers really want to see is professional experience gained in a paid position.</p>

<blockquote>
  <p>is it really so strict in Germany? What is the most legal way to
  participate in public activities in such situation?</p>
</blockquote>

<p>First of all, no employer will admit to you that his contract violates the law. From 2007 to 2012, my former employer (an IT intermediary from India) in Michigan, USA, subjected me to a certain oppressive condition. It was in year 2013 when I realized that Michigan statutory law prohibits employers to impose on their employees that condition, whence this employer/intermediary had no option but to remove that clause from the contract.</p>

<p>Second, I am neither familiar with German law nor with how German courts have interpreted similar clauses. The basis of what follows is <em>my understanding</em> of the excerpt you reproduce (please note that German is <strong>not</strong> my first language).</p>

<p>The language of the contract is not as prohibitive as your employer portrays to you. Item (1) means that the employee needs the company's permission to:</p>

<ul>
<li>Conduct any activity (professional or otherwise, directly or indirectly) for the benefit of a competitor (here the key term is <em>Konkurrenz Geschäfte</em>); or</li>
<li>Acquire or possess shares of other companies (up to a limit of 5%), provided that these shares do not give the holder any voting rights. The nature of the 2nd sentence implies that here <em>Beteiligung</em> refers to shares/stocks, rather than the more general meaning of <em>beteiligen</em>. (Side comment: The 5% limitation seems poorly drafted because --unless I am misreading-- it means that, if the employee acquires more than 5% of a firm, then employer's permission is no longer required).</li>
</ul>

<p>Unless GitHub, Stackoverflow, etc. are your employer's competitors (which is neither likely nor reflected in your inquiry), the language in item (1) does not prohibit you to participate in those platforms or forums. The clause would be applicable if the nature and detail of your contributions elsewhere in those forums realistically entails a risk whereby (i) a competitor may gain a concrete advantage over your employer, or (ii) constitute theft of intellectual property or disclosure of trade secrets.</p>

<p>Likewise, item (3) only requires approval by the company if your publication/lecture/presentation touches on the interests of your employer.</p>
