Back in 2010 the Court of Justice of the European Union (CJEU) was faced with an intriguing question with regards the legal protection of graphical user interfaces (GUI) – Case C-393/09 Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury. The question raised before the CJEU was whether a GUI can be protected as a form of expression of a computer program under the EU Software Directive (Directive 91/250). The question was premised on an interpretation of Article 1(2) of Directive 91/250 which reads the following – “Protection in accordance with this Directive shall apply to the expression in any form of a computer program.”
It is important here to note that the EU Software Directive contains no definition of the term “computer program” and this was done deliberately. It was the view of the EU legislator that any definition would eventually become obsolete in view of the fast pace of technological development and its impact on the nature of computer software.
Despite this approach of the EU legislator, a computer program can be simply defined as a set of instructions whose aim is to achieve a particular result or function. Thus, the basis of each computer program are these instructions which can take the form of source code and object code. The source code is an expression of the computer program that is created in human readable form through a programming language. However, in this form the source code cannot cause the computer to perform a given task. In order for the source code to become executable it needs to be compiled into binary form (1 and 0) and thus become intelligible to a machine. It is this binary form that is called “object code”. Thus, the source code is an expression of the software intelligible to a human being while the object code can be read only by a computer.
It is without doubt that both forms of expression of a computer program – source code and object code, can be protected as literary works under copyright. This is explicitly proclaimed by Article 10(1) of the TRIPS Agreement – “Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)”.
Then comes the question what is a GUI and does it fall within the concept of an expression of the computer program?
The GUI is an interaction interface – it allows interaction between the user and the computer program. It can also be referred to as the “look and feel” of the computer program. The GUI is represented in icons, cursors, buttons, windows, menus that you see on a computer screen. The objects that form a GUI display certain information to the user and in turn the user can initiate certain actions and commands through them. Most modern GUIs also include touchscreen capabilities and possibilities for voice commands. Without a GUI, the user would have to type in textual commands through a keyboard for every simple action that could otherwise be achieved with a double click of the mouse.
What are the protected expressions of a computer program?
In its Opinion on Case C‑393/09, Advocate General Bot suggested that the expression of a computer program should be protected under copyright only when the potential reproduction of this expression would bring about the reproduction of the computer program itself. Therefore, the rationale of the EU legislator would be that only such expressions whose reproduction leads to reproduction of the computer program itself are in fact protected expressions under Article 1(2). This is clearly the case when it comes to the source code and object code of the program, as well as any preparatory design materials that are capable to lead to the creation of the computer program. On the other hand, the reproduction of the graphic user interface would not lead to a reproduction of the computer program itself. The GUI unlike the source code and object code does not enable the computer program to perform the task for which it was created. Instead, it is just an interaction interface. Furthermore, it is possible to have two programs that have different source code but share the same graphical user interface. In this sense, Advocate General Bot postulated that the GUI does not communicate the computer program.
The CJEU in its Judgement from 22 December 2010 sided with the position of the Advocate General. The conclusion of the Court was that the GUI does not enable the reproduction of the computer program, but merely constitutes one element of that program by way of which users make use of its features. Therefore, the GUI does not constitute a form of expression of a computer program within the meaning of Article 1(2) of the Software Directive and it cannot be protected by copyright in computer programs.
This, however in no way means that the GUI will have to remain unprotected subject matter.
First, a graphical user interface in the form of computer code, despite not being a protected expression of a computer program, could be protected as a standalone literary work under copyright – Article 2(a) of Directive 2001/29. For this to be possible, it needs to comply with the originality requirement – the work must be the author’s own intellectual creation. Nevertheless, it may turn out to be very difficult for the code of a GUI to satisfy the originality requirement. This is so because many of the elements that comprise the GUI have a purely functional purpose – to facilitate the use of the underlying computer program. Therefore, it is possible that the expression of those elements in code will be dictated purely by technical constraints and there will be only one or a few limited ways how the expression could be formulated by the programmer. If that is the case, then those expressions will not pass the originality requirement. In any event, the question of originality can be answered by the courts only after a careful analysis on a case-by-case basis. When such analysis is performed, the components that are dictated by technical necessity must be removed from the assessment.
Second, the visual external components of the GUI can also attract IP protection. The individual graphical elements of the GUI – icons, buttons, graphics, GUI screens can be protected against copying as separate artistic works to the extent they are original. Copyright protection will subsist automatically without the need for registration formalities or payment of any official fees in countries belonging to the civil law tradition.
Additionally, the GUI could also potentially attract protection as an overall representation – the “look and feel” of the program. Such copyright protection however could turn out to be very difficult to obtain as the general “look and feel” of the program leans to be more of an abstraction than an expression. Furthermore, it is likely that the courts would focus their analysis on the separate elements that form the GUI and will eliminate those that are dictated by functional requirements. Therefore, any GUI elements that are not original or are merely functional will not be included in the total expression to be protected under copyright. This dissection approach may inevitably affect the overall scope of protection afforded to the GUI making it thin.
A significantly better alternative to protect the investments behind a GUI can be found in the use of design rights. In the EU there are two viable community-wide options for such an IP strategy.
The first is the registered community design. Such a design has to be registered with the European Union Intellectual Property Office (EUIPO). The registration process before the EUIPO is very fast as it is sometimes possible to obtain a registration certificate only within several days after an application. The term of protection for a registered community design is 5 years from the date of filing the application and this term can be renewed for a total term of up to 25 years from the date of initial filing. It needs to be mentioned that the community design system in fact co-exists with the national design systems of the EU Member States.
The second option is the unregistered community design which can be obtained without a registration procedure by disclosing the design to the public within the EU or by marketing products that incorporate the design. The unregistered community design would grant its holder protection against unlicensed reproduction for a period of 3 years. It should be taken into account though that unregistered designs are more difficult to enforce.
In some other countries, such as the USA for example, designs are protected under patent law as “design patents”.
An interesting third alternative for IP protection would be the registration of some distinctive GUI icons as trademarks or the use of a moving trademark that encapsulates some key elements of a GUI. A moving trademark for example could be effective for protecting any transition effects in a GUI that separate the specific GUI from its competition. A clear benefit of a trademark registration for GUI elements would be that protection in such a scenario could potentially last indefinitely.