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This article was included in the spring 2011 issue of snIPpets - the intellectual property newsletter.
The Court of Justice of the European Union (CJEU) has ruled in Bezpečnostnĭ softwarová asociace - Svaz softwarové ochrany v Ministerstvo kultury (Case C-393/09) that a graphical user interface (GUI) can be protected by copyright under the Information Society Directive (Directive 2001/29), but does not qualify for copyright protection as a computer program under the Software Directive.
The case was referred to the CJEU by a Czech court in a dispute regarding the refusal by the Ministry of Culture of the Czech Republic to authorise the collective administration of copyrights to computer programs. One of the grounds the Ministry of Culture based its refusal was that copyright law protects only the object code and source code of a computer program, not a GUI which simply enables a user to interact with the program by clicking on the screen.
The Czech court decided to refer certain issues to the CJEU for guidance before determining the outcome of the case. The first question was whether a GUI qualifies for copyright protection as a computer program under the Software Directive. This Directive protects "the expression in any form of a computer program". The CJEU ruled that the GUI is not an expression of a computer program, but simply allows the user to communicate with the computer program. In the CJEU's view, since this does not enable reproduction of that computer program, it does not qualify for copyright protection as a computer program under the Software Directive.
However, the CJEU ruled that a GUI can be protected by copyright under the Information Society Directive (Directive 2001/29) if it is its author's own intellectual creation. In order to decide this, the national court must take into account the specific arrangement or configuration of all the components which form part of the GUI in order to determine which meet the criterion of originality. When applying this test, the national court should also ignore components of the GUI which are differentiated only by their technical function.
Finally, the CJEU ruled that television broadcasting of a GUI does not constitute the communication to the public of a work protected by copyright within the meaning of Article 3(1) of the Information Society Directive. The CJEU held that the essential element of a GUI is its ability to allow a user to interact with the computer program. Since this feature is not maintained when the GUI is broadcast on television, there is no communication to the public of the GUI which qualifies for protection.
| In practice: This judgment confirms that GUIs can be protected by copyright under the Information Society Directive, but not as a computer program under the Software Directive. However, the requirement for interaction with the GUI for infringement to occur by way of communication to the public has been criticised. This issue may need further clarification from the CJEU in future. |