ECJ: Interactive screen displays or graphical user interfaces may be protected as copyright works

ECJ, Judgement of the Court (Third Chamber) of 22th December 2010 – Bezpečnostní softwarová asociace – Svaz softwarové ochrany vs. Ministerstvo kultury (C-393/09)

On 22th December 2010, the Court of Justice of the European Union (ECJ) has ruled that the interactive screen displays or graphical user interfaces (“GUIs”) used by computer and hand-held operating systems may be protected as copyright works – most notably literary and artistic works. However, a GUI cannot by itself be protected by the copyright in the underlying software code. As a result, software developers will be able to prevent copying—but only to a limited extent.

The case’s facts were the following: On 9 April 2001, BSA, as an association, applied to the Ministerstvo kultury for authorisation for the collective administration of copyrights to computer programs, under Paragraph 98 of the Copyright Law. BSA defined the extent of those rights in a letter dated 12 June 2001. That application was refused, and the administrative action brought against that refusal was dismissed. BSA then brought a legal action against those decisions before the Vrchní soud v Praze (High Court, Prague). Following the setting aside of those two rejection decisions by the Nejvyšší správní soud (Supreme Administrative Court), to which the case was referred, on 14 April 2004 the Ministerstvo kultury adopted a fresh decision by which it again dismissed BSA’s application. BSA therefore brought an administrative appeal before the Ministerstvo kultury, which annulled that rejection decision. On 27 January 2005, the Ministerstvo kultury adopted a new decision, by which it rejected BSA’s application yet again on the ground, firstly, in particular, that the 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, it 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. BSA lodged an appeal against that decision, which was dismissed on 6 June 2005 by a decision of the Ministerstvo kultury. The association then challenged the latter decision before the Městský Soud v Praze (Regional Court, Prague). In its action, BSA submitted that the definition of a computer program in Paragraph 2(2) of the Copyright Law also covers the user interface. In its submission, a computer program can be perceived at the level both of the source or object code and of the method of communication (communication interface). The Mĕstský soud v Praze having dismissed its action, BSA appealed on a point of law before the Nejvyšší správní soud. BSA takes the view that a computer program is used when it is shown in a display on user screens and that, consequently, such use must be protected by copyright. As regards the interpretation of the provisions of Directives 91/250 and 2001/29, the Nejvyšší správní addressed the question to the ECJ whether 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. Furthermore, the Nejvyšší správní wated to know whether broadcasting a GUI falls within communicating the work to the public.

The Court ruled finally, a graphic user interface is not a form of expression of a computer program within the meaning of Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs and cannot be 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/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society if that interface is its author’s own intellectual creation. Furthermore, 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.

Thorsten Wünschmann
Attorney

Mail wuenschmann@nickelonline.de
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