accountant .agency.amazon .baby .beer .business.caravan .chanel ...

1. Whether Article 1(2) of the Software
Directive must be interpreted as
meaning that the functionality of a
computer program, the programming
language and the format of data files
used in a computer program to exploit
certain functions constitute a form of
expression of that program and may
be protected by copyright in computer
programs for the purposes of
that Directive.
2. Whether Article 5(3) of the Software
Directive must be interpreted as meaning
that a person who has obtained a copy of
a computer program under a licence is
entitled, without the authorisation of the
owner of the copyright in that program,
to observe, study or test the functioning
of that program to determine the ideas
and principles that underlie any element
of the program, in the case where that
person carries out acts covered by
that licence with a purpose that goes
beyond the framework established
by the licence.
3. Whether Article 2(a) of the Information
Society Directive must be interpreted as
meaning that the reproduction, in a
computer program or a user manual
for that program, of certain elements
described in the user manual for another
computer program protected by
copyright constitutes an infringement
of that right in the latter manual.
On these questions, the CJEU
ruled as follows:
First, Article ı(2) of the
Software Directive must be
interpreted as meaning that neither
the functionality of a computer
program nor the programming
language and the format of data
files used in a computer program to
exploit certain functions constitute a
form of expression of that program
and, as such, are not protected by
copyright in computer programs
for the purposes of that Directive.
Second, Article 5(3) must be
interpreted as meaning that a
person who has obtained a copy of
a computer program under a licence
is entitled, without the authorisation
of the owner of the copyright, to
observe, study or test the functioning
of that program so as to determine
the ideas and principles that underlie
any element of the program, in the
case where that person carries out
acts covered by that licence and acts
of loading and running necessary for
the use of the computer program,
and on condition that the person
does not infringe the exclusive rights
of the owner of the copyright in
that program.
And finally, that Article 2(a) of
the Information Society Directive
must be interpreted as meaning
that the reproduction, in a program
or a user manual for it, of certain
elements described in the manual
for another program protected
by copyright can constitute an
infringement of the copyright in the
latter manual if – this being a matter
for the national court to ascertain
– that reproduction constitutes the
expression of the intellectual creation
of the author of the user manual for
the program protected by copyright.
Monopoly concern
At paragraph 40 of its judgment,
the CJEU was concerned that, if the
functionality of a computer program
was allowed to be protected by
copyright, this could mean that ideas
may be monopolised, which would,
of course, be against the wording of
Article ı(2) of the Software Directive.
Further, at paragraph 4ı, the CJEU
pointed to the advantage of other
authors being able “to create similar
or even identical programs provided
that they refrain from copying”.
Rightly or wrongly, this ruling may
mean that manufacturers of original
software will become less willing
to spend money on research and
development of software for Europe.
At paragraph 45, the CJEU
explained that, while the language
and format of data files used in
a computer program might not
be protected under the Software
Directive, they may be protected, as
literary works, by copyright under
the Information Society Directive if
it can be shown that they are their
author’s own intellectual creation (See
Bezpecnostní softwarová asociace v
Svaz softwarové ochrany ([20ı0] CJEU
C-393/09) (“BSA”) paragraphs 44 to
46 and Infopaq International A/S v
Danske Dagblades Forening [2009]
CJEU C-5/08, paragraphs 33 to 37).
In Nova Productions Limited v
Mazooma Games Limited and others,
and Nova Productions Limited v Bell
Fruit Games Limited [2006] EWCA
Civ ı044, the Court of Appeal did not
refer certain questions to the CJEU
relating to arguments about whether
“preparatory design material”
was included in the definition of
“computer program” under the
Software Directive and the extent
CASE COmmeNt
ABOUT THE
AUTHORS
Charlie White
is an Associate and member of
the IP team at Edwin Coe LLP
charlie.white@edwincoe.com
Simon miles
is a Partner and Head
of IP at Edwin Coe LLP
simon.miles@edwincoe.com
to which the Copyright, Designs
and Patents Act ı988 had therefore
correctly implemented the Software
Directive. It is interesting to note that
in both BSA (paragraphs 36 to 37)
and SAS Institute Inc (paragraphs 36
to 37) the CJEU stated that: “the term
‘computer program’ also includes
preparatory design work leading
to the development of a computer
program, provided that the nature of
the preparatory work is such that a
computer program can result from it
at a later stage,” and such work is
stated to be an object of protection
under the Software Directive.
The judgment in SAS Institute
Inc is not surprising. One possible
reaction could be a renewed focus
by manufacturers of original
software on their attempts to
extend the scope of patent
protection for computer programs.
Currently in Europe, the position
is that the application of a program
may be patentable if it possesses
a technical characteristic. However,
this can be difficult to prove.
37