Software als Schutzgegenstand des Europäischen Urheberrechts (Software as the Object of Protection in European Copyright Law)

After 20 years of silence, two recent references from the Czech Republic (Bezpečnostní softwarová asociace, Case C-393/09) and from the United Kingdom (SAS Institute, Case C-406/10) touch upon several questions which are fundamental for the extent of copyright protection for software under the Computer Program Directive 91/250 (now 2009/24) and the Information Society Directive 2001/29. In Case C-393/09, the European Court of Justice has held that a graphical user interface (GUI) is not protected under the Computer Program Directive, as it 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”. While the exclusion of GUIs mirrors earlier jurisprudence in the Member States, the main significance of Case C-393/09 lies in its interpretation of the Information Society Directive. In confirming that a GUI “can, as a work, be protected by copyright if it is its author’s own intellectual creation”, the ECJ elaborates further the European notion of “work” as defined in the Infopaq (Case C-5/08) by excluding expressions from copyright protection that are dictated by their technical function. Even more importantly, the ECJ held that a television broadcasting of a GUI does not constitute a communication to the public, as the individuals cannot have access to the “essential element characterising the interface”, the interaction with the user. The exclusion of elements dictated by technical functions from copyright protection and the interpretation of the right of communication to the public with reference to the “essential element characterising” the work may be seen as welcome limitations of copyright protection in the interest of a free public domain which were not yet apparent in Infopaq. While Case C-393/09 has given a first definition of the computer program, the reference in Case C-406/10 – which was decided after this paper had been finalised – has clarified the protection against non-literal copying, namely where the limits of protection lie as regards the functionality of a program. In the light of the travaux préparatoires, it is submitted that the ECJ was right to exclude the functionality of a program from protection under the Computer Program Directive. Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). URN: urn:nbn:de:0009-29-30824