Software als Schutzgegenstand des Europ ischen Urheberrechts

After 20 years of silence, two recentreferences from the Czech Republic (Bezpe nostnísoftwarová asociace, Case C-393/09) and from theEnglish High Court (SAS Institute, Case C-406/10)touch upon several questions that are fundamen-tal for the extent of copyright protection for soft-ware under the Computer Program Directive 91/250(now 2009/24) and the Information Society Direc-tive 2001/29. In Case C-393/09, the European Courtof Justice held that “the object of the protection con-ferred by that directive is the expression in any formof a computer program which permits reproductionin different computer languages, such as the sourcecode and the object code.” As “any form of expressionof a computer program must be protected from themoment when its reproduction would engender thereproduction of the computer program itself, thus en-abling the computer to perform its task,” a graphicaluser interface (GUI) is not protected under the Com-puter Program Directive, as it does “not enable thereproduction of that computer program, but merelyconstitutes one element of that program by meansof which users make use of the features of that pro-gram.” While the definition of computer program andthe exclusion of GUIs mirror earlier jurisprudence inthe Member States and therefore do not come as asurprise, the main significance of Case C-393/09 liesin its interpretation of the Information Society Direc-tive. In confirming that a GUI “can, as a work, be pro-tected by copyright if it is its author’s own intellectualcreation,” the ECJ continues the Europeanization ofthe definition of “work” which began in Infopaq (CaseC-5/08). Moreover, the Court elaborated this conceptfurther by excluding expressions from copyright pro-tection which are dictated by their technical function.Even more importantly, the ECJ held that a televisionbroadcasting of a GUI does not constitute a commu-nication to the public, as the individuals cannot haveaccess to the “essential element characterising theinterface,” i.e., the interaction with the user. The ex-clusion of elements dictated by technical functionsfrom copyright protection and the interpretation ofthe right of communication to the public with refer-ence to the “essential element characterising” thework may be seen as welcome limitations of copy-right protection in the interest of a free public domainwhich were not yet apparent in Infopaq. While CaseC-393/09 has given a first definition of the computerprogram, the pending reference in Case C-406/10 islikely to clarify the scope of protection against non-literal copying, namely in how far the prot