Thursday 1 December 2011

Copyright protection of graphic user interfaces: the show must go on…

The 1709 Blog has learned from the excellent Zuzana Hecko (Allen & Overy, Bratislava, Slovak Republic) about recent events in light of the dispute over copyright in graphic user interfaces (GUIs) which briefly disturbed the serenity of the Court of Justice of the European Union in Case C-393/09 Bezpečnostní softwarová asociace – Svaz softwarové ochrany, in which judgment was given last December. Let Zuzana explain:
"Many were surprised when the Czech Supreme Administrative Court submitted the question of whether Graphic User Interfaces (GUI) can benefit from copyright protection as computer programs to the Court of Justice, thinking, “of course they cannot”. The case arose in the Czech Republic in 2001, when the Security Software Association (Bezpečnostní softwarová asociace – Svaz softwarové ochrany; BSA) asked the Czech Ministry of Culture for authorisation to collect royalties for the collective administration of economic rights in respect of computer programs. The request was refused under the reasoning that copyright protects only the source and the object code of a computer program, not the GUI, for which the laws of unfair competition were relevant. This did not please the BSA and in 2009 the case escalated to the Court of Justice. 
The Court of Justice, not surprisingly, confirmed that the GUI merely constitutes one element of a computer program and therefore, as such, cannot benefit from the copyright protection provided under Directive 91/250 on the legal protection of computer programs. The court, however, stated that the GUI, even if not protected as a computer program, can benefit from copyright protection under Directive 2001/29 (Copyright in the Information Society Directive), if it is original and the author’s own intellectual creation, which is for the national court to decide. 
The court gave further guidance to the national court as to how to assess the eventual copyright protection of the GUI, and stated that the national court should pay specific attention to the specific arrangement or configuration of all components which form part of the GUI in order to determine whether they are “original” and that this criterion is not met if the components are differentiated only by their technical function. The judgment clearly follows the opinion of the Advocate General Bot, who stated that it seemed that the criterion of originality was not met and that whether the GUI constitutes the author’s own intellectual creation needs to be assessed on a case-by-case basis. 

One could hardly interpret such decision as a blanket “yes” to whether GUI can benefit from copyright protection, as anything in this world can be copyright protected if it is original and if it is author’s own intellectual protection. 

Nevertheless, after the judgment, ignoring the court’s “ifs”, the Czech collecting society OOA-S, interpreting this judgment as a major victory for the copyright protection of GUI, started to demand conclusion of licence agreements and payment of royalties from internet cafés in respect of GUI for games. Internet cafés, having already paid licence fees to the games manufacturers, seem to be very unwilling to pay yet another fee, to yet another collecting society (not being certain about whom this collecting society represents and on the basis of which titles). 
These developments assure us that the peculiar situation regarding the potential copyright protection of GUI in the Czech Republic is not over. Watch this space for news of further developments".

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