This is a very interesting development in the light of recent decisions on whether Intellectual Property protection applies to computer – user interfaces. In other words, does Intellectual Property apply to how we talk to computers?
Back in 2010, when Microsoft released the Kinect motion sensor, it was hacked very quickly. Already at that time, Microsoft decided to have an open API (technical interface) and SDK (software development kit), allowing other developers and programs to interact freely with the Kinect motion sensor.
Now, even the core code has been opened up, and is available under an Apache 2.0 open source license.
As IP professionals would know, the Court of Justice of the European Union (the supreme court of the EU) has ruled recently that, in the EU, graphical user interfaces are not covered by software copyright (you can find the decision here). It’s important to understand that the decision relates to the functionality of the interface – any design elements or other graphical elements can still be covered by classical copyright (as any artistic design) – but such copyright never covers the underlying functionality, i.e. what the interface does (which is to allow a human user to give instructions to the software program).
The functionality of such interface (and the code expressing such functionality) is free from software copyright.
Without going into too much detail or analysis, there is a very interesting question to be asked here. If the EU says that there is no software copyright in graphical user interfaces, would the same reasoning apply to motion user interfaces? My feeling is that the answer would be positive, since the CJEU also says that technical interfaces (API’s) are not covered by software copyright (the analogy is not perfect – API’s connect different bits of software, not the software and the user).
In other words, we now interact with our computers through the graphical screen of the machine, typically by pointing or clicking. If that is not protected by software copyright, does that mean that the software that allows human-computer interaction by motor sensing is also free from software copyright in the EU?
To my knowledge, the question has never been asked in a court in the EU. But Microsoft may, for this one, have been really ahead of the game.