GUI not a computer program (Part 1)

In its judgment of 22 December 2010, Case C393/09 Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury, the Court of Justice of the European Union (the Court), found that a graphical user interface (GUI) was not protected by copyright as a computer program under Article 1(2) of the Software Directive and subsequently, that the broadcast of the interface was not an infringing act.
The case related to the attempts by BSA to gain authorisation from the Czech  Ministry of Culture for the collective administration of computer program copyrights. The Ministry of Culture rejected the application on the basis that while the source and object code of a computer program were protected under Czech copyright law, the GUI could not be.
BSA appealed the decision which was dismissed by the regional court of Prague and on appeal to the Czech Supreme Court proceedings were stayed while the following questions were referred to the Court:
‘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]?’
Is a GUI a computer program under Article 1(2) of the Software Directive?
The Court notes that the Directive protects the source code and object code of a computer program as well as preparatory design work that results in the computer program (para 36). The GUI was viewed by the Court not as an integral part of a program but rather a means by which a user could interact with the program.  The GUI ‘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’ (para 41).
The Court did observe that a GUI could be otherwise protected by copyright law so long as it was a work of the author’s own intellectual creation (paras 44; 46). However, as the Court points out by reference to the Advocate General’s Opinion, it may be difficult for particular elements of a GUI to attract protection because they serve a purely technical function. As the Advocate General puts it at paragraphs 75 and 76:
‘75.      […] [T]he manner in which those elements are expressed can be only limited since, as the Commission stated in its written submissions, the expression is dictated by the technical function which those elements fulfil. Such is the case, for example, of the mouse which moves the cursor across the screen, pointing at the command button in order to make it operate or of the drop-down menu which appears when a text file is open.
76.      In such cases, it seems to me that 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. If such a possibility Ire (sic) offered, it would have the consequence of conferring a monopoly on certain companies on the computer program market, thus significantly hampering creation and innovation on that market, which would run contrary to the objective of Directive 2001/29.’ [references omitted]
Indeed, it seems possible that any text or pictures could themselves be protected as literary and artistic works respectively. Yet, as Lionel Bently points out, the Court is adopting a civil law approach that protects ‘works of the mind’ so long as they are the author’s own intellectual creation whereas the UK copyright regime protects original works in a closed list of subject matter. This decision therefore raises some serious questions about how the Court may define a ‘work’ and the impact of this on UK courts in interpreting the closed list of subject matter in line with the Information Society Directive.
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