Originality in computer programs

The originality requirement

Within the EU, there is only one requirement for obtaining copyright protection for a computer program – the requirement for originality.

Article 1 (3) of the EU Directive 2009/24 on the legal protection of computer programs (the Software Directive) reads that “[a] computer program shall be protected if it is original in the sense that it is the author’s own intellectual creation. No other criteria shall be applied to determine its eligibility for protection.”

In its case law the Court of Justice of the European Union (CJEU) further elucidates the concept of originality in the following way – “As stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices” (Judgment of the Court of 1 December 2011, Eva-Maria Painer v Standard VerlagsGmbH and Others, Case C-145/10, paragraphs 88-89). Therefore, for a work to be original the author must have been able to express his creative abilities in the production of the work by making free and creative choices so that in some way the final product bears the mark of its creator.

In the case of a computer program, the originality will have to be assessed on the basis of the expression in source code and also the way this source code is structured and organized (i.e. also the overall sequence and structure of the code). This is so because the general approach is that computer programs are treated as literary works for the sake of their protection under copyright. Given that source code is human readable such an approach is far from surprising. In this sense, Article 1 (1) of the Software Directive postulates that “Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works”.

Determining originality

How to determine whether a work is original and hence it can be protected under copyright?

In general, there are two consecutive steps in order to make such a determination:

1. First, the subject matter must be an expressed object. For example, the source code of a computer program is an expressed object that materializes through the use of a programming language.
2. Second, the subject matter must leave room for free and creative choices and they should be employed by the author. This requirement will be satisfied if the underlying idea behind the computer program and the desired software functionality allow for making free and creative programming choices when it comes to the expression in source code and such choices are made.

It is important to mention that copyright protection is granted to a computer program automatically as of the moment of its creation. Under the EU legal framework, there is no need for registration of the work or any other formalities in order for copyright to subsist.

 

 

As for the term of copyright protection for a computer program in the EU, it is 70 years after the death of the author. In the case of a work of joint authorship, the 70 years’ term shall be calculated from the death of the last surviving author. In the common scenario of a computer program that is created as part of an employment relationship, the term of copyright protection that could be granted to the employer will run for 70 years after the work has been lawfully made available to the public. It could be argued that such long term of protection for a computer program is inconsistent with the dynamics of the software industry and may result in inhibiting the development of software.

The idea-expression dichotomy

However, there is a certain trade-off for the ease with which copyright protection is obtained. Copyright protection is relatively thin in the sense that it only covers the expression of an idea and not the underlying idea itself.

It has to be underlined that the idea-expression dichotomy is a key tenet in copyright law. This principle dictates that copyright law does not protect underlying ideas but only their expression. To give a practical example, the idea for a computer program that compares the prices of airline tickets and presents the results in a certain order predefined by the preferences of the user cannot be protected under copyright. It is only the expression – the particular source code of that program, that can be protected under copyright. The logic behind this copyright principle is that it prevents the establishment of monopolies on ideas and thus facilitates productivity and innovation.

This general copyright principle will have far-reaching implications for software development projects. Effectively, it will allow a competitor to create a new program that incorporates the exact same idea or realizes the exact same functionality as an existing program, as long as it does not copy the underlying source code of the existing program.

In other words, the copyright regime would not be able to provide legal protection if a program is developed independently (it has a different source code) but is based on the same idea or produces the same functionality as an existing program. Emulating the functionality of an existing program would not be a violation of copyright. This conclusion was also explicitly affirmed by the CJEU in its judgement in Case C-406/10 SAS Institute Inc v World Programming Ltd (paragraphs 39-46).

The merger doctrine

Any discussion on the concept of originality in computer programs would be incomplete without mentioning the implications of the so-called “merger doctrine”. The merger doctrine is a principle in copyright law dictating that when there is only one or a very limited number of ways to express an idea, then the boundary between idea and expression disappears and they merge. Accordingly, the result is that the merged idea-expression is not protected under copyright.

Therefore, it might be that the expression of certain elements of a computer program in source code is dictated entirely by technical rules and constraints and there is only one or only a few limited ways how the expression could be formulated by the programmer. If that is the case, then based on the “merger doctrine”, such works or their respective elements would not satisfy the originality requirement and no copyright will subsist. Interestingly, the merger doctrine was used as a defense by Google in the notable legal battle between Oracle and Google for the copyrightability of the Java API which ultimately reached the US Supreme Court. /you can read my detailed analysis of this complex copyright case here/