07.11.2024

Protection of computer programmes in CJEU case law

On October 17, 2024, the Court of Justice of the European Union ("CJEU") delivered a new judgment[1] interpreting the scope of the subject-matter and content of the protection enjoyed by the holder of the copyright in a computer program under Article 1 of Directive 2009/24/EC on the legal protection of computer programs ("Directive").

1. The dispute giving rise to the reference for a preliminary ruling

In Case C-159/23, the CJEU had to determine whether or not the alteration/transformation of the content of variables which a computer program protected under the Directive has stored in RAM and which that program uses during its execution constitutes an infringement of copyright.

The problem of interpretation was generated by a dispute before the German courts between Sony Computer Entertainment Europe Ltd, on the one hand, and Datel Design and Development Ltd, Datel Direct Ltd, on the other hand.

Sony, as a supplier of PlayStation game consoles and games for those consoles, marketed, up to and including 2014, the famous PlayStation Portable ('PSP') and games for that console. Datel, on the other hand, develops, manufactures and markets software primarily for Sony game consoles, offering complementary products such as Action Replay PSP and the Tilt FX device.

In the case in the main proceedings, Sony claimed that, by means of Datel's devices and software, users transform the computer program underlying the games in a way which infringes its copyright.

In view of this factual situation, the question of law was essentially whether the use of Datel's software infringes Sony's copyright in the computer program, where there is no modification of the source or object code of that program or its reproduction, because another computer program, running at the same time as the protected computer program, alters the content of the variables that the protected computer program has stored in the RAM of that computer and uses in the course of running that program.

2) Legal protection of computer programs

In accordance with Art. (1)-(3) of Directive [...], Member States shall protect computer programs by copyright as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. For the purposes of this Directive, the term 'computer program' includes preparatory design material [...]"

The provisions of the Directive have been transposed into national law, and the legal regime of copyright protection for computer programs is set out in Article 73 et seq. of Law No. 8/1996 on copyright and related rights. In essence, the legal protection of computer programs such as the application in the present case is provided by copyright, and this protection relates exclusively to the "forms of expression" of such a program (i.e. source code, object code).

The case law of the CJEU has already ruled in the past that "neither the functionality of a computer program, nor the programming language and the format of the data files used within a computer program to exploit certain of its functions constitute a form of expression of that program within the meaning of that provision[2]", an interpretation to the contrary being, in the European Court's view, to give the possibility of monopolizing ideas to the detriment of technical progress and industrial development.

The Court has also held in the past that 'the graphical user interface of a computer program, which does not enable that program to be reproduced but constitutes merely an element of that program through which users exploit the program's functionalities, does not constitute a form of expression of a computer program within the meaning of that provision'[3]

3) The solution and the CJEU's considerations

In order to answer the question referred for a preliminary ruling, the CJEU held, first of all, that the objective pursued by the system of protection of computer programs established by the European Union legislature is to protect copyright holders against the unauthorized reproduction of those programs, "which has become very easy and cheap in the digital environment, and against the marketing of 'pirated' copies of them."[4] The CJEU also held that the aim of the system of protection of computer programs is to protect copyright holders against the unauthorized reproduction of those programs, "which has become very easy and cheap in the digital environment, and against the marketing of 'pirated' copies of them."[4

However, the European court recalled that the legal regime for the protection of computer programs does not confer an absolute monopoly right that would prevent independent development or limit technological progress. The competitors of the author of a program, after having identified the underlying ideas, rules or principles through an independent analysis, are free to develop their own compatible solutions, having the possibility of using the same concepts without reproducing the specific form of expression of the protected programs.

Second, the CJEU found, on analysis of the reference decision, that the Datel software does not, as such, permit the reproduction of the protected program or any part of it, but, on the contrary, presupposes that that program is running at the same time.

In that context, the content of the variables would represent an element of the protected program by means of which users exploit the functionalities of that program, which is not protected as a 'form of expression' of a computer program within the meaning of Article 1(2) of Directive 2009/24.

In the light of those considerations, the CJEU answered the question referred for a preliminary ruling to the effect that: "the protection conferred by that directive does not apply to the content of variables which a protected computer program has stored in the computer's operational memory and which that program uses during its execution, in so far as that content does not permit the reproduction or further realization of such a program."

The CJEU judgment confirms the already traditional view on the protection of computer programs that the essential is the form of expression, with the avoidance of limiting technological progress and competitive creativity. In an era of rapid innovation, this decision reaffirms that the law cannot become a brake on evolution, but must support competition and compatibility, without compromising original protection.

[1] CJEU, C-159/23, Sony Computer Entertainment Europe Ltd v. Datel Design and Development Ltd, Datel Direct Ltd

[2] CJEU, C-406/10, SAS Institute EU:C:2012:259, SAS Institute EU:C:2012:259, para. 39 and 40

[3] CJEU, C 393/09, Bezpečnostní softwarová asociace EU:C:2010:816, para. 41 and 42.

[4] CJEU, C 159/23, Sony Computer Entertainment Europe Ltd v. Datel Design and Development Ltd, Datel Direct Ltd

An article written by Mircea Vasile - Junior Lawyer.