GUI not a computer program (Part 2)

In Case C393/09 Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury, the Court of Justice found that a GUI is not a computer program under the Software Directive. The second question addressed by the Court was:

Is the broadcast of a GUI or a part of a GUI a communication to the public?

The Court found that the broadcasting of a GUI did not constitute communication to the public under Article 3(1) of the Information Society Directive despite noting that a GUI could be an author’s own intellectual creation and hence protected by copyright. At paragraph 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.’
The problem here, as Jeremy at IP Kat has so neatly pointed out, is that the Court’s conclusion is based on the assumption that the GUI can only be communicated to the public if the public can interact with it. Yet clearly the broadcast has communicated the GUI or a part of it to the public and it is up to the referring court to determine whether a substantial part of the work has been communicated. The lack of interactivity is thus beside the point.
UK cases on GUIs
For an indication of how UK courts have dealt with copyright protection for GUIs see Navitaire v EasyJet [2004] EWHC 1725 Ch where the screen and icons of the interface were found to be artistic works. The issue was revisited in SAS Institute Inc v World Programming Ltd [2010] EWHC 1829 (Ch) in which interfaces were determined not to be computer programs under the Software Directive but the court indicated that a reference to the Court of Justice would be necessary to determine this. The approach in this case has been vindicated by the Court’s resoning in BSA – GUIs are not protected by the Software Directive. The key point to note, again, is that while an interface may not be a computer program it may be a work so long as it is the author’s own intellectual creation. 
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