In Bezpe?nostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury, the Court of Justice of the European Union considered a reference for a preliminary ruling on the interpretation of Article 1(2) of Council Directive 91/250/EEC on the legal protection of computer programs. Its ruling was given on 22 December and can be read in full here.
The dispute arose because the Ministerstvo kultury rejected an application from Bezpe?nostní softwarová asociace – Svaz softwarové ochrany (BSA) for the right to collectively administer copyrights to computer programs on two grounds. First, that the Czech Copyright Law protects only the object code and the source code of a computer program, but not the result of the display of the program on the computer screen, since the graphic user interface was protected only against unfair competition. Secondly, the Ministry stated that the collective administration of computer programs was indeed possible in theory, but that mandatory collective administration was not an option and that voluntary collective administration served no purpose.
The following questions were referred to the Court for a preliminary ruling:
‘1. Should Article 1(2) of [Directive 91/250] be interpreted as meaning that, for the purposes of the copyright protection of a computer program as a work under that directive, the phrase ‘the expression in any form of a computer program’ also includes the graphic user interface of the computer programme or part thereof?
2. If the answer to the first question is in the affirmative, does television broadcasting, whereby the public is enabled to have sensory perception of the graphic user interface of a computer program or part thereof, albeit without the possibility of actively exercising control over that program, constitute making a work or part thereof available to the public within the meaning of Article 3(1) of [Directive 2001/29]?’
The answer to both questions was ‘No’ but the longer version was as follows:
Consideration of the questions referred
The first question
28 By its first question, the national court asks, in essence, whether the graphic user interface of a computer program is a form of expression of that program with in the meaning of Article 1(2) of Directive 91/250 and is thus protected by copyright as a computer program under that directive.
29 Directive 91/250 does not define the notion of ‘expression in any form of a computer program’.
30 In those circumstances, that notion must be defined having regard to the wording and context of Article 1(2) of Directive 91/250, where the reference to it is to be found and in the light of both the overall objectives of that directive and international law (see, by analogy, Case C?5/08 Infopaq International [2009] ECR I?6569, paragraph 32).
31 In accordance with Article 1(1) of Directive 91/250, computer programs are protected by copyright as literary works within the meaning of the Berne Convention. Article 1(2) thereof extends that protection to the expression in any form of a computer program.
32 The first sentence of the seventh recital in the preamble to Directive 91/250 states that, for the purposes of that directive, the term ‘computer program’ shall include programs in any form, including those which are incorporated into hardware.
33 In that regard, reference must be made to Article 10(1) of the TRIPS Agreement, which provides that computer programs, whether expressed in source code or in object code, will be protected as literary works pursuant to the Berne Convention.
34 It follows 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, by virtue of Article 1(2) of Directive 91/250.
35 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.
36 It is also appropriate to highlight the second sentence of the seventh recital in the preamble to Directive 91/250, in accordance with which the term ‘computer program’ also includes preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage.
37 Thus, the object of protection under Directive 91/250 includes the forms of expression of a computer program and the preparatory design work capable of leading, respectively, to the reproduction or the subsequent creation of such a program.
38 As the Advocate General states in Point 61 of his Opinion, any form of expression of a computer program must be protected from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its task.
39 In accordance with the 10th and 11th recitals in the preamble to Directive 91/250, interfaces are parts of a computer program which provide for interconnection and interaction of elements of software and hardware with other software and hardware and with users in all the ways in which they are intended to function.
40 In particular, the graphic user interface is an interaction interface which enables communication between the computer program and the user.
41 In those circumstances, the graphic user interface does not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.
42 It follows that 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.
43 Nevertheless, even if the national court has limited its question to the interpretation of Article 1(2) of Directive 91/250, such a situation does not prevent the Court from providing the national court with all the elements of interpretation of European Union law which may enable it to rule on the case before it, whether or not reference is made thereto in the question referred (see, to that effect, Case C?392/05 Alevizos [2007] ECR I?3505, paragraph 64 and the case-law cited).
44 In that regard, it is appropriate to ascertain whether the graphic user interface of a computer program can be protected by the ordinary law of copyright by virtue of Directive 2001/29.
45 The Court has held 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 (see, to that effect, with regard to Article 2(a) of Directive 2001/29, Infopaq International, paragraphs 33 to 37).
46 Consequently, the graphic user interface can, as a work, be protected by copyright if it is its author’s own intellectual creation.
47 It is for the national court to ascertain whether that is the case in the dispute before it.
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.
49 As the Advocate General states in Points 75 and 76 of his Opinion, where the expression of those components is dictated by their technical function, the criterion of originality is not met, since the different methods of implementing an idea are so limited that the idea and the expression become indissociable.
50 In such a situation, the components of a graphic user interface do not permit the author to express his creativity in an original manner and achieve a result which is an intellectual creation of that author.
51 In the light of the foregoing considerations, the answer to the first question referred is that a graphic user interface is not a form of expression of that program within the meaning of Article 1(2) of Directive 91/250 and thus is not 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 if that interface is its author’s own intellectual creation.
The second question
52 By its second question, the national court asks, in essence, whether television broadcasting of a graphic user interface constitutes communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive 2001/29.
53 In accordance with that article, Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
54 It follows from the 23rd recital in the preamble to Directive 2001/29 that ‘communication to the public’ must be interpreted broadly. Such an interpretation is moreover essential to achieve the principal objective of that directive, which, as can be seen from its 9th and 10th recitals, is to establish a high level of protection of, inter alia, authors, allowing them to obtain an appropriate reward for the use of their works, in particular on the occasion of communication to the public (Case C?306/05 SGAE [2006] ECR I?11519, paragraph 36).
55 It follows that, in principle, television broadcasting of a work is a communication to the public which its author has the exclusive right to authorise or prohibit.
56 In addition, it is apparent from paragraph 46 of the present judgment that the graphic user interface can be its author’s own intellectual creation.
57 Nevertheless, if, in the context of television broadcasting of a programme, a graphic user interface is displayed, television viewers receive a communication of that graphic user interface solely in a passive manner, without the possibility of intervening. They cannot use the feature of that interface which consists in enabling interaction between the computer program and the user. Having regard to the fact that, by television broadcasting, the graphic user interface is not communicated to the public in such a way that individuals can have access to the essential element characterising the interface, that is to say, interaction with the user, there is no communication to the public of the graphic user interface within the meaning of Article 3(1) of Directive 2001/29.
58 Consequently, the answer to the second question referred is that 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.
