15 January 2011

Copyright Protection of Graphical User Interfaces in Europe (C-393/09)

Even though up to now this blog predominantly reported on patent issues and IP politics, it is nevertheless intended to cover other types of software-related intellectual property as well.

I thus feel that I have to mention at least briefly the recent decision of the European Court of Justice in case C-393/09 (BSA vs. Ministry of Culture of the CR), which is dealing with copyright protection of graphical user interfaces (GUI). The headnote of the Court's judgement reads:
1.  A graphic user interface is not a form of expression of a computer program within the meaning of Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs [the so called Software Directive, now replaced by Directive 2009/24/EC] and cannot be protected by copyright as a computer program under that directive. Nevertheless, such an interface can be protected by copyright as a work by Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [the so called Copyright Directive] if that interface is its author’s own intellectual creation.

2.  Television broadcasting of a graphic user interface does not constitute communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive 2001/29.
As elaborately explained on the Bright Spark blog, the ECJ was exclusively discussing a GUI as an interface, i.e. as a means by which the user can interact with his computer.

In a first step, the ECJ negated copyright protection of GUI's under Directive 91/250, since Article 1(2) of that Directive grants copyright protection "to the expression in any form of a computer program" while the ECJ concluded
that the source code and the object code of a computer program are forms of expression thereof which, consequently, are entitled to be protected by copyright as computer programs (§ 34). Accordingly, the object of the protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code (§ 35).

It follows that interface does not constitute a form of expression of a computer program within the meaning of Article 1(2) of Directive 91/250 and that, consequently, it cannot be protected specifically by copyright in computer programs by virtue of that directive (§ 42).
In a second step the ECJ examined whether computer GUIs are copyright protected by virtue of Directive 2001/29 and found that 
copyright within the meaning of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation (§ 45). Consequently, the graphic user interface can, as a work, be protected by copyright if it is its author’s own intellectual creation (§ 46). 
A final conclusion is then drawn under § 48:
When making that assessment, the national court must take account, inter alia, of the specific arrangement or configuration of all the components which form part of the graphic user interface in order to determine which meet the criterion of originality. In that regard, that criterion cannot be met by components of the graphic user interface which are differentiated only by their technical function.
For more detailed information on and critical discussions of this matter you may refer to Hu'ko's blog (here, here, and here), the IPKat (here and here), or the 1709 blog (here, here, here, and here).

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