In case C 393/09, the ECJ decided that a GUI is not a form of expression of a computer program and cannot therefore be protected by copyright as a computer program under Directive 91/250/EEC. Indeed, that directive protects the forms of expression of a computer program and the preparatory design work capable of leading, respectively, to the reproduction or the subsequent creation of such a program. A GUI is an interaction interface which enables the user to communicate with the program and to make use of its features: it is only an element of the program which does not enable its reproduction, and which does not constitute a form of expression of the latter, either.
Nevertheless, the ECJ confirms that a GUI can be protected by copyright as a work by the “Infosoc” Directive 2001/29/EC, if the interface is its author’s own intellectual creation. Indeed, a GUI can be considered as a literary or artistic work in the traditional sense, and its original elements should therefore benefit from copyright protection… so far, so good.
In a second question, the ECJ was asked whether television broadcasting of a GUI “constitutes communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive 2001/29”. The ECJ answers that if a GUI is displayed in the context of television broadcasting of a programme, television viewers receive a communication of that GUI in a passive manner, without having the possibility to interact with the program. According to the ECJ, as individuals do not 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”.
Even if it constitutes the first step towards the cliff, this sentence remains entirely valid. If indeed the ECJ deems that the essential feature of a GUI is interactivity between the program and its users (a point on which one could easily concur), then the mere broadcasting of “what’s happening on the screen when the GUI is operated” is not a communication of the GUI as such. In other words, what is communicated does not correspond to the GUI definition upheld by the ECJ.
Nonetheless, something other of a graphical nature is communicated, which could embody some original features or elements that are part of or used in the GUI (an icon, a frame, an animation, a graphic charter for instance), that could still be protected as such by copyright, that could still be displayed on the viewers’ screens, and the communication of which could anyway need the prior authorization of the author.
The ECJ awkwardly concludes that “the answer to the second question referred is that 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”. According to us, this conclusion is to be handled very cautiously, as it seems that the ECJ focuses only on the GUI as a whole. One must however bear in mind that even if the GUI is not transmitted as such, some of its graphical elements might be copyright protected items that could possibly not be communicated without the author’s prior consent.
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To my opinion, at the end, the conclusions of the General Advocate consider that the GUI is neither the instructions of the code leading to the effect, neither the visual effect itself but the “thing in between”. Accordingly, the GUI does only exist when and to the extent that the user triggers the mechanism leading to a result. A mere interactive work which existence only consists of the dynamic elements of the work. This interpretation, though very disputable, would then be consistent with the wording of the Court according to which the essential elements of the work are not communicated through a “passive” broadcasting of the visual aspects of the GUI. This would not prevent the exclusive right from applying on the visual dimension of the Interface when this visual dimension is in itself an original work.
Hi Valerie, thank you very much for your reaction.
An intepretation very disputable indeed…
It seems to me that even though the Court followed largely the Advocate General’s opinion, and upheld (but redrafted!) his conclusions, it also decided to cut short some parts of his reasoning… probably because he went too far or was at least somehow incoherent.
I’m skeptical about the legal concept of a “GUI” which would be a specific work to be distinguished from the software code implementing it and from its graphical elements as well. By ripping off the GUI’s code and its (audio)visual manifestations, one could argue that what remains is a formless element… and as you know, the embodiment of the work in a certain form is one of the two conditions to attract copyright protection.
In §54 of his opinion, the AG explains “the graphic user interface, commonly referred to as the ‘look and feel’, enables communication between the program and the user. It is in the form, for example, of icons and symbols visible on the screen, windows or drop-down menus”. In §75, he carries on “…the majority of the elements which comprise it have a functional purpose … such is the case, for example, of the mouse which moves the cursor across the screen, pointing at the command button in order to make it operate or of the drop-down menu which appears when a text file is open”. In order to define and explain what a GUI is or how it works, the GA refers essentially to graphical elements (icons, symbols visible on the screen, moving cursors, command buttons, drop-down menus…). When it comes to appreciate the public communication, he seems to only focus on the interaction with the user. However, such interaction is impossible without the graphical elements.
Therefore, my view is that a GUI is a whole, comprising graphical elements and their intrinsic “dynamic”, but nonetheless, some parts of it may attract copyright protection even when separated from this whole.
I must say I find the decision very problematic (and agree with Philippe Laurent), because the court seems to have accepted that there are categories of copyright works protected only when performing a certain function (i.e. used as they intended to be used), which I think is rather alien to copyright law.
I like the above post.It’s all about communications.