Legal background

In the EU, protection of computer programs is harmonised under copyright as literary works. This is done particularly through various EU directives such as the computer programs directive (91/250/EC), the information society directive (2001/29/EC) and the software directive (2009/24/EC), of which the first and last regulate computer programs specifically and which in turn are transposed into national legislation (such as the Finnish Copyright Act that ironically recognised protection of computer programs under copyright before the EU). This essentially means that the code which composes the computer program is protected under copyright, which entails a prohibition of unwarranted reproduction, alteration, communication to the public etc. More specifically case law grants protection to the source- and object code of the computer program which forms its main executable text.^{(1)See software Directive 2009/24/EC recitals 7, 10–11} This code is then text which is granted copyright but importantly only insofar that text is the result of its creator’s (author) conscious and creative choices.

Herein the distinction between traditional literary works and computer programs starts to become evident. Novels, poems, plays etc. are naturally creative in the whole of their expression but in the case of computer programs, parts of their text can be deemed as non-expressive of the author’s creativity and thus not qualify for protection.^{(2)For Finnish viewpoint prior to Computer programs directive 91/250/EC see Finnish HE 161/1990 p. 16 and Finnish Copyright Council TN 1989:7} As computer programs exist in a functional technical environment where they need to be drafted in a specific way for the computer to interpret their functionality, those parts of the computer program which exist as a technical necessity do not gain protection under copyright. This means for example that the choice of a programming language or using certain technical solutions does not gain protection under copyright.

A major part of the CJEU’s limited case law on computer programs has specifically addressed the scope of protection for computer programs. Most importantly the CJEU held famously in the SAS-case that the functionality of the computer program is not protected under copyright as it is outside of the direct expression of the author contained in the protected text (e.g. source code) and other interpretation would be against the objectives of international protection.^{(3)C-406/10 – SAS Institute Inc. v World Programming Ltd, paras 38-40, and by analogy Case C‑5/08 Infopaq International; “international protection” referring to the Berne Convention article 2 referenced in the decision.} Similarly in IT Development case it was recognised that alterations specifically to the source code constitute infringement of copyright an sich.^{(4)C-666/18 – IT Development SAS v Free Mobile SAS, paras 32-34} Lastly (and importantly for the Case) neither are the methods by which the user makes use of the computer program, such as a graphical user interface, protected as computer programs.^{(5)C-393/09 – Bezpečnostní softwarová asociace, para 41} Excluding user interfaces, the CJEU has not previously evaluated the protectability of certain parts of computer programs’ code via differentiation of its component or module (sections by which the computer program can be divided via its functionality) and has opted for determining whether a part in question enables the infringement (alteration or reproduction) of the clearly protected part of the program.

The legal background for the evaluation of the protection (and in a way prohibited alterations) of computer programs is then to exclude all technically necessary and non-original material from the evaluation. Therefore, protectability and originality of a computer program is not all of its code, but merely those text and components which the author has made a conscious and creative effort in.^{(6) The practical test is also known as “Abstraction-filtration-comparison -method” following from the Computer Associates International Inc. v. Altai Inc. 982 F.2d 693 (2d Cir. 1992); Similarly followed in Finland via HelHo 1999:T:3571 and in the Finnish Copyright Council practice TN:2013:1} This is particularly difficult considering the context that computer programs, unlike traditional written works, exist purely in a digital format which means that their use and management creates reproduction and alterations of works within and between executing computers.^{(7)See software directive 2009/24/EC recital 13 and art.5(1) for exception on necessary exceptions.}

The Case

In the Case at hand the CJEU was asked by the Bundesgerichtshof (German Federal Court of Justice) to evaluate whether the content of the variable produced by software A was protected so that the alteration made to it by software B was infringing its copyright by altering it while it was stored in the random-access memory (RAM) of the executing device.

For the sake of technical understanding, a variable is a part of computer program’s code which designates a name and storage location (depending on the used programming language) for a specific data that is the content of a variable. This content of a variable can be quite literally anything from simple data to complex functions or combination of different variables. Both the variables, their parameters (how they are used) and contents of the variables arise from the source code of the computer program but may be altered in the course of its execution in the computer itself. Depending on its design, the RAM is used to store values, functions and other material necessary for the computer program’s proper execution. In a nutshell, a computer program (such as an internet browser) stores data (such as content of the website or amount of clicks) which it needs/uses for its functioning on the RAM.

Analysis

The CJEU’s ruling above has broadly two different facets: evaluation of copyright infringement and potential originality of variable’s content.

First, the CJEU’s outcome on the Case is not very surprising. As Datel’s program was intentionally not able to supplement or reproduce any of the primary expression (source code) the underlying computer program was executing, it was clear that there was no infringement from a broader view on goals of copyright protection in the EU. However, the CJEU’s heavy emphasis on this non-effect to the copyrightable material seems very much a case-by-case evaluation that could be very different upon just a slightly different technical implementation. What is noteworthy are the different factors which the CJEU used in determining in favour of non-infringement: alteration did not make any changes to the source code (or its execution), Datel’s software had to run simultaneously with Sony’s and the pro-competition stance of the underlying legal regime.^{(10)In paras 36 and 48 of the Case the CJEU made an analogy to the SAS Institute case C-406/10 and a direct reference to the explanatory memorandum to the Proposal for a Council Directive on the legal protection of computer programs (OJ 1989 C 91)}

Second, the evaluation of contents of variables lacking originality is much more interesting. Due to the multiple references by the CJEU to the core parts of the Opinion it is safe to assume that the legal analysis on content of the variables presented in the Opinion is applicable to the CJEU’s outcome. As outlined above, the Opinion takes a rather strict stance on the possibility of contents of variables being protected as parts of computer program. It is however somewhat unclear as to which part of the Opinion’s analysis is intended to be general and which in casu as all of the analysis happens under the title “Application in the present case”. Therefore, especially considering the specific facts of the Case, the Opinion’s established legal rule cannot necessarily apply for all contents of variables but rather should be understood within very specific caveats:

• In the Case the content of the variable was very simple in nature. Its originality by itself (which was not in dispute) was undoubtably not sufficient for copyright protection, but it would be interesting to consider what the outcome would have been if the variable or the content of it would have been more integral to the normal and proper functioning of the system. While it is reasonable that a mere alteration in a minor part of an expression does not infringe on the text, an alternative situation where alteration prohibits a certain part of intended expression could bring a different outcome.

• A non-negligible part of the analysis focused on the fact that the contents of the variable were transferred to the RAM wherein they were used by Sony’s program and altered by Datel’s. This distinction from other processing is a bit confusing, because the CJEU has not previously made a determination based on where a part of software code (which includes values) is transferred to. From the technology neutral point of view (as in the applicable software directive) the memory storage location should by all logic be non-determinative for the legal evaluation. It is not uncommon that both executable program and variables it generates are uploaded to RAM. As computer memory is not necessarily segmented in a way that makes a significant difference to its execution, it is not clear why this was part of the CJEU’s reasoning.

• Especially the Opinion made a strong stance that a content of a variable is “not an element of a computer program’s code” (note object of the sentence). This evaluation can be understandable from the point of view where we refer to simple values which the computer program generates during runtime following a player’s actions. The stance is however less understandable when it is taken to refer contents of variables by default, as one can easily consider those variables which can generate contents that are not simple and “generated” only as a technical solution (not set value). Furthermore, and continuing from point above, nothing necessarily stops the content of the variable from being embedded into the clearly protected source code. From this point of view, both the originality of contents of variables and their inseparability from the source code could be challenged.

• Lastly, when the Opinion considers Sony’s arguments on the protectability of “game experiences” it is important to note that the referring court made the request for a preliminary ruling only on the basis of the software directive. It would be interesting to consider whether Sony’s argument to the protectability of content of variables (as comprising game experience) would have succeeded under a different legal norm especially as the CJEU has recognised in its case law the special nature of video games comprising of software and non-software elements.^{(11)C-355/12 Nintendo Co. Ltd et al v. PC Box Srl, para 23; Similarly, it is worth to note that the Case concerned protection only under the software Directive 2009/24/EC and not e.g. the Information Society Directive 2001/29/EC to which the CJEU made explicit distinction and reasoning in the paras 27-29 of the Case.} It is also noteworthy that the Case did not concern technical protection mechanisms which Datel would have had to circumvent.

In conclusion, the Case offers some inherently valuable evaluation on the consideration of IPR infringement of computer programs’ text through alteration of its parts, and a more academically interesting analysis on the originality and connection standards for computer programs’ parts and code.