Thursday, January 28, 2010

Copyright protection of the Graphic User Interface

Yesterday, i´ve recieved the entire judgement (33 pages in Czech) of the City court of Prague which relate to case C-393/09 - BSA vs. Ministry of Culture of the CR pending before ECJ (see below). It deals with copyright protection of graphic user interface (GUI), collective administration of some economic rights to computer programs, possible broadcasting of computer program and other more local-importance (national law) issues. As blog 1709, i´ve been also wondering how this question appeared before some administrative court. Well, long story (beginning in 2001) and really intricate. So what happened in Czech republic ? (..shortened by me with some references to Czech Copyright Act - English version of which could be found here - doesn´t include some relevant amendments)

Back in 2001, Security Software Association (BSA) applied for authorization to execute collective administration pursuant to article 98 of Czech Copyright Act in two distinctive fields :

Mandatory administrated rights
- the right to use by cable retransmission of works, the live performances and performances fixed on phonogram ... the right to the use by cable retransmission of audiovisual fixations and phonograms other than those published for commercial purposes (Article 96 (1) (c)).

Voluntarily administrated rights
- right of rental of the original or a copy of the work, (Article 12 (4) (c))
- right of communication of the work to the public, (Article 12 (4) (f)) namely
1. the right of performing live or from a fixation, and the right of transmitting the performance of the work,
2. the right of broadcasting the work,
3. the right of rebroadcasting and retransmitting of the broadcast of the work,
4. the right of performing of the broadcast of the work.

Grating of the authorization has been rejected (not going into deep details) on the following grounds :

The right to use computer program by cable retransmission was found unlikely (absurd), because as such could be performed only by cable retransmitting of source code or machine code to the public. Pursuant to this interpretation isn´t GUI protected as form of computer program, but could be, if satisfy more strict requirements (unique vs. original), as the other work of art. GUI is creation (potentially copyrightable work) different from computer program which it constitutes. Ministry´s opinion is strongly based on the survey carried by Dr. Jiří Čermák (well-known Czech IT&IP scholar) who was authorized to provide his opinion on the issue by Ministry of Culture of CR.

Authorization for voluntarily administered economic rights has been rejected due to lack of effective execution of collective administration. I don´t want to get to the details. However worth mentioning is that computer programs are allegedly not collectively administrated in any Member state yet (Ministry of Culture claimed). There are also some good thoughts on right of rental of the computer program and communication to public rights, but it is out of scope of this post.

BSA appealed against decision to the City Court of Prague. They argued that computer programs are protected in any manner, meaning also in form of Graphic User Interface. Source code and machine code are both expressions of computer program in objectively percievable manner which user don´t understand. Indeed, user understands computer program in form of GUI, claimed plaintiff. Therefore pursuant to "any manner", not only source code and machine code but also communication of computer program to user shall be recognized as copyright protected (in computer program regime). Hence the authorization for collective administration of the right to use by cable retransmission of works shall be granted. Court clearly upheld Ministry´s decision adding some own reasoning.

- Subject to copyright infringement is only the source code or machine code of the computer program.
- Computer program is a work which interconnects with other computer program and result of this connection shall be subject to regime different from copyright.
- Pure look at computer program shall not be considered as use of computer program. This would mean that computer program is used in terms of law without enjoying the function of computer program which is absurd.

In my opinion this is really important, because private use exception (free use) does not apply to computer programs. Noteworthy is also the fact, that neither "press and TV licence" apply to making available to public (see article 66(7) with connection to article 34).

I did also find one short reference to decision of District court of Dusseldorf, stating the very same as Ministry of Culture. Anybody could provide it ? Unfortunately they didn´t state case number.

BSA appealed to Supreme Administrative Court which referred these questions to ECJ in C-393/09 :
- Should Article 1(2) of Council Directive 91/250/EEC 1 of 14 May 1991 on the legal protection of computer programs 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 program or part thereof?
- 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 European Parliament and Council Directive 2001/29/EC 2 of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?

It´s your move, dear Court of Justice of European Union :)

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