Yesterday, 22 December 2010, the European Court of Justice ruled on a very interesting question: does software protection apply to the graphical user interface (GUI)?
This may not surprise lawyers, but my guess is it would surprise IT people.
IT lawyers know that in the EU, software protection (a specific form of copyright protection) applies to both source and object code, but not to the technical function expressed through the code.
What the ECJ has now decided is that specific software protection also does not apply to the content expressed through the code.
Why would it be surprising? For two reasons.
The first reason is that the ECJ says that a Graphic User Interface falls within the scope of “interface”.
I always presumed, as I think most IT people would, that “interface” meant an interface allowing two bits of software to talk to each other, like an API. But it seems that interface apparently means any interface, including the GUI.
The second reason is that the ECJ says that any interface falls outside the scope of software protection, because it is not an expression of a software function.
To me, that is new. I always thought that the protection of interfaces (i.e. API’s) was pretty small, because the directive always allows decompilation of software in order to develop an interface with another program. But that’s not the same as saying that, in any event, any interface falls outside software protection. Which is what the ECJ seems to be saying.
My first reaction is that this will not be a big change, but it is an important limitation of software protection. User interfaces are “interfaces” under the directive, and any interface falls outside the scope of the directive.
My second reaction is that there are other very interesting comments.
The ECJ clearly applies the merger doctrine. If an expression is dictated by its technical limitations (if there’s only one technical way to create an expression), there is no copyright.
Also, the ECJ clearly states that copyright cannot protect technical function of software.
In conclusion, I think the ECJ decision supports my earlier comments on software developed by other software. If such software is only a technical function and has no expression of the individual author, as would be the case if code was developed by other software, it falls outside the scope of software protection.
Therefore, such software is not covered by copyright.
Finally, it would seem that this case does not bode well for the SAS efforts, where SAS attempts to have underlying parts of software (software language…) protected under the software directive.
It seems that the ECJ recognizes the inherent problem in using copyright, which aims at protecting individual expression, to cover technical developments in IT.
Impact for business? Software copyright protection in the EU seems to be narrow; don’t build a business case – yet – on expanding it to peripheral elements of software.
Finally, don’t forget that the GUI view is still protected by the underlying copyright in the graphical elements (e.g. the pictures used, or the way the design is set up).