Interface, in-yer-face: Court of Justice rules on Czech GUIs

Here's a little copyright case which, tytoc collie thinks, may just be wrongly decided. The Court of Justice of the European Union has just delivered its ruling in Case C‑393/09, Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury, a reference for a preliminary ruling from a Czech Court, the Nejvyšší správní soud.

In April 2001 the BSA applied to the Ministry of Culture for authorisation for the collective administration of copyright in computer programs, under Paragraph 98 of the Czech Copyright Law, its objective being to secure the right to the collective administration of graphic user interfaces (GUIs -- the bits that computer users see on the screen, like icons which they can click on when navigating a program). After nearly four years of ding-dong battle in the courts and before the Ministry itself, the Ministry rejected the BSA application yet again on two grounds: (i) the Copyright Law protected 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; (ii) the collective administration of computer programs was possible in theory, but since voluntary collective administration served no purpose, mandatory collective administration was not an option in reality.  A further appeal ended up with the following questions being referred to the Court of Justice for a preliminary ruling:

‘1. Should Article 1(2) of [Directive 91/250: the Software Directive, now codified here as Directive 2009/24] 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?

2. If the answer to the first question is in the affirmative, does television broadcasting, whereby the public is enabled to have sensory perception of the graphic user interface of a computer program or part thereof, albeit without the possibility of actively exercising control over that program, constitute making a work or part thereof available to the public within the meaning of Article 3(1) of [Directive 2001/29]?’

The first thing the Court had to do was to decide whether it even had jurisdiction to make a ruling, since the dispute arose before the date of accession of the Czech Republic to the European Union. Yes, said the Court: while the original dispute pre-dated accession, subsequent decisions arising from it took place after accession and, in any event, since the effect of the appealed-against decision was prospective, not retrospective, it was governed by EU law and the Court could therefore take jurisdiction.

"Being able to see the mouse is all very nice", said Katrina to her kittens,
"though they're not much use if you can see them but not click them"

The Court then ruled as follows:

1. 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 ... 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 ... 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.

2. 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.

The reason for the Court's second holding is simple.

"55 ... in principle, television broadcasting of a work is a communication to the public which its author has the exclusive right to authorise or prohibit.

56 In addition, ... the graphic user interface can be its author’s own intellectual creation.

57 Nevertheless, if, in the context of television broadcasting of a programme, a graphic user interface is displayed, television viewers receive a communication of that graphic user interface solely in a passive manner, without the possibility of intervening. They cannot use the feature of that interface which consists in enabling interaction between the computer program and the user. Having regard to the fact that, by television broadcasting, the graphic user interface is not communicated to the public in such a way that individuals can have access to the essential element characterising the interface, that is to say, interaction with the user, there is no communication to the public of the graphic user interface within the meaning of Article 3(1) of Directive 2001/29."

With respect, this member of tytoc collie team thinks the Court is wrong because it is asking itself an irrelevant question. The Court is assuming that the issue is one of functionality -- can the viewer interact with the GUI -- and that, if the answer is "no", there has been no communication of it.  In the Kat's opinion the question is whether a copyright-protected work is being communicated (and in principle the Court says yes, it is), followed by the question whether the communication is of all or of a sufficiently substantial part of the work to constitute infringement -- and this is a question for the referring court to determine on the facts, applying its own judgment.  A GUI might have very little graphic content but a good deal of interface, or vice versa.

tytoc collie thanks fellow IP blogger and enthusiast Martin Husovec (who got there first) for drawing this decision to his attention.