[clug] EU Court of Justice: The functionality of a computer program and the programming language cannot be protected by copyright

[steve jenkin]

This doesn't revoke Software Patents, but extends the right to clone
API's, languages and data formats from the previous decision (that
Tridge was instrumental in) of reverse engineering protocols [on the
wire?] for the purposes of interoperability. [Anyone got a
name/reference to that?]

We've yet to see how this stacks up in the USA against the injunctions
of the DMCA against reverse engineering ['anti-circumvention'
provisions] with limited exceptions. para 44 of the judgement makes a
point that the defendant did *not* 'decompile' the program, only
observed the behaviour: reverse engineering by decompiling seems verboten.

IIRC, Australia adopted some version or subset of the DMCA. [references
anyone?]

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NOTE: This does NOT constitute legal advice and currently this decision
only applies in the European Union.
===========================================

>From the Judgement, some references to International Law, which imply
some or all of the principles will translate to signatories of WIPO:

33      With respect to international law, both Article 2 of the WIPO
Copyright Treaty and Article 9(2) of the TRIPs Agreement provide that
copyright protection extends to expressions and not to ideas,
procedures, methods of operation or mathematical concepts as such.

34      Article 10(1) of the TRIPs Agreement provides that computer
programs, whether in source or object code, are to be protected as
literary works under the Berne Convention.

[The important part for programmers in para 38 is the GUI is merely one
element of the program... Meaning?? it can be cloned like an API??]

38      From this the Court concluded that the source code and the
object code of a computer program are forms of expression thereof which,
consequently, are entitled to be protected by copyright as computer
programs, by virtue of Article 1(2) of Directive 91/250. On the other
hand, as regards the graphic user interface, the Court held that such an
interface does not enable the reproduction of the computer program, but
merely constitutes one element of that program by means of which users
make use of the features of that program (Bezpečnostní softwarová
asociace, paragraphs 34 and 41).

>From Groklaw:
<http://www.groklaw.net/article.php?story=20120502083035371>

points to press release:
<http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-05/cp120053en.pdf>

The functionality of a computer program and the programming language
cannot be protected by copyright

The purchaser of a licence for a program is entitled, as a rule, to
observe, study or test its functioning so as to determine the ideas and
principles which underlie that program.

The Court recalls, first, that the Directive on the legal protection of
computer programs1 extends copyright protection to the expression in any
form of an intellectual creation of the author of a computer program2.
However, ideas and principles which underlie any element of a computer
program, including those which underlie its interfaces, are not
protected by copyright under that directive.

Thus, only the expression of those ideas and principles is protected by
copyright. The object of the protection conferred by Directive 91/250 is
the expression in any form of a computer program, such as the source
code and the object code, which permits reproduction in different
computer languages.

On the basis of those considerations, the Court holds that neither the
functionality of a computer program nor the programming language and the
format of data files used in a computer program in order to exploit
certain of its functions constitute a form of expression. Accordingly,
they do not enjoy copyright protection.

To accept that the functionality of a computer program can be protected
by copyright would amount to making it possible to monopolise ideas, to
the detriment of technological progress and industrial development.

Second, the Court observes that, according to the Directive, the
purchaser of a software licence has the right to observe, study or test
the functioning of that software in order to determine the ideas and
principles which underlie any element of the program. Any contractual
provisions contrary to that right are null and void. Furthermore, the
determination of those ideas and principles may be carried out within
the framework of the acts permitted by the licence.

Lastly, the Court holds 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 is
capable of constituting an infringement of the copyright in the latter
manual if that reproduction constitutes the expression of the
intellectual creation of the author of the manual.

In this respect, the Court takes the view that, in the present case, the
keywords, syntax, commands and combinations of commands, options,
defaults and iterations consist of words, figures or mathematical
concepts, considered in isolation, are not, as such, an intellectual
creation of the author of that program. It is only through the choice,
sequence and combination of those words, figures or mathematical
concepts that the author expresses his creativity in an original manner.

It is for the national court to ascertain whether the reproduction
alleged in the main proceedings constitutes the expression of the
intellectual creation of the author of the user manual for the computer
program protected by copyright.
-- 
Steve Jenkin, Info Tech, Systems and Design Specialist.
0412 786 915 (+61 412 786 915)
PO Box 48, Kippax ACT 2615, AUSTRALIA

sjenkin at canb.auug.org.au http://members.tip.net.au/~sjenkin