Document Actions
Citation and metadata
Recommended citation
Christian Heinze, Software als Schutzgegenstand des Europäischen Urheberrechts, 2 (2011) JIPITEC 97 para 1.
Download Citation
Endnote
%0 Journal Article %T Software als Schutzgegenstand des Europäischen Urheberrechts %A Heinze, Christian %J JIPITEC %D 2011 %V 2 %N 2 %@ 2190-3387 %F heinze2011 %X After 20 years of silence, two recent references from the Czech Republic (Bezpečnostní softwarová asociace, Case C-393/09) and from the English High Court (SAS Institute, Case C-406/10) touch upon several questions that are fundamental for the extent of copyright protection for software under the Computer Program Directive 91/25 (now 2009/24) and the Information Society Directive 2001/29. In Case C-393/09, the European Court of Justice held that “the object of the protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code.” As “any form of expression of a computer program must be protected from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its task,” a graphical user interface (GUI) is not protected under the Computer Program Directive, as it does “not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.” While the definition of computer program and the exclusion of GUIs mirror earlier jurisprudence in the Member States and therefore do not come as a surprise, the main significance of Case C-393/09 lies in its interpretation of the Information Society Directive. In confirming that a GUI “can, as a work, be protected by copyright if it is its author’s own intellectual creation,” the ECJ continues the Europeanization of the definition of “work” which began in Infopaq (Case C-5/08). Moreover, the Court elaborated this concept further by excluding expressions from copyright protection which are dictated by their technical function. Even more importantly, the ECJ held that a television broadcasting of a GUI does not constitute a communication to the public, as the individuals cannot have access to the “essential element characterising the interface,” i.e., the interaction with the user. The exclusion of elements dictated by technical functions from copyright protection and the interpretation of the right of communication to the public with reference to the “essential element characterising” the work may be seen as welcome limitations of copyright protection in the interest of a free public domain which were not yet apparent in Infopaq. While Case C-393/09 has given a first definition of the computer program, the pending reference in Case C-406/10 is likely to clarify the scope of protection against nonliteral copying, namely in how far the protection extends beyond the text of the source code to the design of a computer program and where the limits of protection lie as regards the functionality of a program and mere “principles and ideas.” In light of the travaux préparatoires, it is submitted that the ECJ is also likely to grant protection for the design of a computer program, while excluding both the functionality and underlying principles and ideas from protection under the European copyright directives. %L 340 %K Algorithmen %K Benutzeroberfläche %K Computerprogramm %K Individualität %K Originalität %K Programmcode %K Programmiersprachen %K Programmstruktur %K Richtlinie 2001/29 %K Richtlinie 2009/24 %K Richtlinie 91/250 %K Schnittstelle %K Software %K Steuerungsfunktion %K Werkbegriff %K öffentliche Wiedergabe %U http://nbn-resolving.de/urn:nbn:de:0009-29-30824 %P 97-113Download
Bibtex
@Article{heinze2011,
author = "Heinze, Christian",
title = "Software als Schutzgegenstand des Europ{\"a}ischen Urheberrechts",
journal = "JIPITEC",
year = "2011",
volume = "2",
number = "2",
pages = "97--113",
keywords = "Algorithmen; Benutzeroberfl{\"a}che; Computerprogramm; Individualit{\"a}t; Originalit{\"a}t; Programmcode; Programmiersprachen; Programmstruktur; Richtlinie 2001/29; Richtlinie 2009/24; Richtlinie 91/250; Schnittstelle; Software; Steuerungsfunktion; Werkbegriff; {\"o}ffentliche Wiedergabe",
abstract = "After 20 years of silence, two recent references from the Czech Republic (Bezpe{\v{c}}nostn{\'i} softwarov{\'a} asociace, Case C-393/09) and from the English High Court (SAS Institute, Case C-406/10) touch upon several questions that are fundamental for the extent of copyright protection for software under the Computer Program Directive 91/25 (now 2009/24) and the Information Society Directive 2001/29. In Case C-393/09, the European Court of Justice held that ``the object of the protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code.'' As ``any form of expression of a computer program must be protected from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its task,'' a graphical user interface (GUI) is not protected under the Computer Program Directive, as it does ``not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.'' While the definition of computer program and the exclusion of GUIs mirror earlier jurisprudence in the Member States and therefore do not come as a surprise, the main significance of Case C-393/09 lies in its interpretation of the Information Society Directive. In confirming that a GUI ``can, as a work, be protected by copyright if it is its author's own intellectual creation,'' the ECJ continues the Europeanization of the definition of ``work'' which began in Infopaq (Case C-5/08). Moreover, the Court elaborated this concept further by excluding expressions from copyright protection which are dictated by their technical function. Even more importantly, the ECJ held that a television broadcasting of a GUI does not constitute a communication to the public, as the individuals cannot have access to the ``essential element characterising the interface,'' i.e., the interaction with the user. The exclusion of elements dictated by technical functions from copyright protection and the interpretation of the right of communication to the public with reference to the ``essential element characterising'' the work may be seen as welcome limitations of copyright protection in the interest of a free public domain which were not yet apparent in Infopaq. While Case C-393/09 has given a first definition of the computer program, the pending reference in Case C-406/10 is likely to clarify the scope of protection against nonliteral copying, namely in how far the protection extends beyond the text of the source code to the design of a computer program and where the limits of protection lie as regards the functionality of a program and mere ``principles and ideas.'' In light of the travaux pr{\'e}paratoires, it is submitted that the ECJ is also likely to grant protection for the design of a computer program, while excluding both the functionality and underlying principles and ideas from protection under the European copyright directives.",
issn = "2190-3387",
url = "http://nbn-resolving.de/urn:nbn:de:0009-29-30824"
}
Download
RIS
TY - JOUR AU - Heinze, Christian PY - 2011 DA - 2011// TI - Software als Schutzgegenstand des Europäischen Urheberrechts JO - JIPITEC SP - 97 EP - 113 VL - 2 IS - 2 KW - Algorithmen KW - Benutzeroberfläche KW - Computerprogramm KW - Individualität KW - Originalität KW - Programmcode KW - Programmiersprachen KW - Programmstruktur KW - Richtlinie 2001/29 KW - Richtlinie 2009/24 KW - Richtlinie 91/250 KW - Schnittstelle KW - Software KW - Steuerungsfunktion KW - Werkbegriff KW - öffentliche Wiedergabe AB - After 20 years of silence, two recent references from the Czech Republic (Bezpečnostní softwarová asociace, Case C-393/09) and from the English High Court (SAS Institute, Case C-406/10) touch upon several questions that are fundamental for the extent of copyright protection for software under the Computer Program Directive 91/25 (now 2009/24) and the Information Society Directive 2001/29. In Case C-393/09, the European Court of Justice held that “the object of the protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code.” As “any form of expression of a computer program must be protected from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its task,” a graphical user interface (GUI) is not protected under the Computer Program Directive, as it does “not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.” While the definition of computer program and the exclusion of GUIs mirror earlier jurisprudence in the Member States and therefore do not come as a surprise, the main significance of Case C-393/09 lies in its interpretation of the Information Society Directive. In confirming that a GUI “can, as a work, be protected by copyright if it is its author’s own intellectual creation,” the ECJ continues the Europeanization of the definition of “work” which began in Infopaq (Case C-5/08). Moreover, the Court elaborated this concept further by excluding expressions from copyright protection which are dictated by their technical function. Even more importantly, the ECJ held that a television broadcasting of a GUI does not constitute a communication to the public, as the individuals cannot have access to the “essential element characterising the interface,” i.e., the interaction with the user. The exclusion of elements dictated by technical functions from copyright protection and the interpretation of the right of communication to the public with reference to the “essential element characterising” the work may be seen as welcome limitations of copyright protection in the interest of a free public domain which were not yet apparent in Infopaq. While Case C-393/09 has given a first definition of the computer program, the pending reference in Case C-406/10 is likely to clarify the scope of protection against nonliteral copying, namely in how far the protection extends beyond the text of the source code to the design of a computer program and where the limits of protection lie as regards the functionality of a program and mere “principles and ideas.” In light of the travaux préparatoires, it is submitted that the ECJ is also likely to grant protection for the design of a computer program, while excluding both the functionality and underlying principles and ideas from protection under the European copyright directives. SN - 2190-3387 UR - http://nbn-resolving.de/urn:nbn:de:0009-29-30824 ID - heinze2011 ER -Download
Wordbib
<?xml version="1.0" encoding="UTF-8"?> <b:Sources SelectedStyle="" xmlns:b="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" xmlns="http://schemas.openxmlformats.org/officeDocument/2006/bibliography" > <b:Source> <b:Tag>heinze2011</b:Tag> <b:SourceType>ArticleInAPeriodical</b:SourceType> <b:Year>2011</b:Year> <b:PeriodicalTitle>JIPITEC</b:PeriodicalTitle> <b:Volume>2</b:Volume> <b:Issue>2</b:Issue> <b:Url>http://nbn-resolving.de/urn:nbn:de:0009-29-30824</b:Url> <b:Pages>97-113</b:Pages> <b:Author> <b:Author><b:NameList> <b:Person><b:Last>Heinze</b:Last><b:First>Christian</b:First></b:Person> </b:NameList></b:Author> </b:Author> <b:Title>Software als Schutzgegenstand des Europäischen Urheberrechts</b:Title> <b:Comments>After 20 years of silence, two recent references from the Czech Republic (Bezpečnostní softwarová asociace, Case C-393/09) and from the English High Court (SAS Institute, Case C-406/10) touch upon several questions that are fundamental for the extent of copyright protection for software under the Computer Program Directive 91/25 (now 2009/24) and the Information Society Directive 2001/29. In Case C-393/09, the European Court of Justice held that “the object of the protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code.” As “any form of expression of a computer program must be protected from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its task,” a graphical user interface (GUI) is not protected under the Computer Program Directive, as it does “not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.” While the definition of computer program and the exclusion of GUIs mirror earlier jurisprudence in the Member States and therefore do not come as a surprise, the main significance of Case C-393/09 lies in its interpretation of the Information Society Directive. In confirming that a GUI “can, as a work, be protected by copyright if it is its author’s own intellectual creation,” the ECJ continues the Europeanization of the definition of “work” which began in Infopaq (Case C-5/08). Moreover, the Court elaborated this concept further by excluding expressions from copyright protection which are dictated by their technical function. Even more importantly, the ECJ held that a television broadcasting of a GUI does not constitute a communication to the public, as the individuals cannot have access to the “essential element characterising the interface,” i.e., the interaction with the user. The exclusion of elements dictated by technical functions from copyright protection and the interpretation of the right of communication to the public with reference to the “essential element characterising” the work may be seen as welcome limitations of copyright protection in the interest of a free public domain which were not yet apparent in Infopaq. While Case C-393/09 has given a first definition of the computer program, the pending reference in Case C-406/10 is likely to clarify the scope of protection against nonliteral copying, namely in how far the protection extends beyond the text of the source code to the design of a computer program and where the limits of protection lie as regards the functionality of a program and mere “principles and ideas.” In light of the travaux préparatoires, it is submitted that the ECJ is also likely to grant protection for the design of a computer program, while excluding both the functionality and underlying principles and ideas from protection under the European copyright directives.</b:Comments> </b:Source> </b:Sources>Download
ISI
PT Journal AU Heinze, C TI Software als Schutzgegenstand des Europäischen Urheberrechts SO JIPITEC PY 2011 BP 97 EP 113 VL 2 IS 2 DE Algorithmen; Benutzeroberfläche; Computerprogramm; Individualität; Originalität; Programmcode; Programmiersprachen; Programmstruktur; Richtlinie 2001/29; Richtlinie 2009/24; Richtlinie 91/250; Schnittstelle; Software; Steuerungsfunktion; Werkbegriff; öffentliche Wiedergabe AB After 20 years of silence, two recent references from the Czech Republic (Bezpečnostní softwarová asociace, Case C-393/09) and from the English High Court (SAS Institute, Case C-406/10) touch upon several questions that are fundamental for the extent of copyright protection for software under the Computer Program Directive 91/25 (now 2009/24) and the Information Society Directive 2001/29. In Case C-393/09, the European Court of Justice held that “the object of the protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code.” As “any form of expression of a computer program must be protected from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its task,” a graphical user interface (GUI) is not protected under the Computer Program Directive, as it does “not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.” While the definition of computer program and the exclusion of GUIs mirror earlier jurisprudence in the Member States and therefore do not come as a surprise, the main significance of Case C-393/09 lies in its interpretation of the Information Society Directive. In confirming that a GUI “can, as a work, be protected by copyright if it is its author’s own intellectual creation,” the ECJ continues the Europeanization of the definition of “work” which began in Infopaq (Case C-5/08). Moreover, the Court elaborated this concept further by excluding expressions from copyright protection which are dictated by their technical function. Even more importantly, the ECJ held that a television broadcasting of a GUI does not constitute a communication to the public, as the individuals cannot have access to the “essential element characterising the interface,” i.e., the interaction with the user. The exclusion of elements dictated by technical functions from copyright protection and the interpretation of the right of communication to the public with reference to the “essential element characterising” the work may be seen as welcome limitations of copyright protection in the interest of a free public domain which were not yet apparent in Infopaq. While Case C-393/09 has given a first definition of the computer program, the pending reference in Case C-406/10 is likely to clarify the scope of protection against nonliteral copying, namely in how far the protection extends beyond the text of the source code to the design of a computer program and where the limits of protection lie as regards the functionality of a program and mere “principles and ideas.” In light of the travaux préparatoires, it is submitted that the ECJ is also likely to grant protection for the design of a computer program, while excluding both the functionality and underlying principles and ideas from protection under the European copyright directives. ERDownload
Mods
<mods>
<titleInfo>
<title>Software als Schutzgegenstand des Europäischen Urheberrechts</title>
</titleInfo>
<name type="personal">
<namePart type="family">Heinze</namePart>
<namePart type="given">Christian</namePart>
</name>
<abstract>After 20 years of silence, two recent references from the Czech Republic (Bezpečnostní softwarová asociace, Case C-393/09) and from the English High Court (SAS Institute, Case C-406/10) touch upon several questions that are fundamental for the extent of copyright protection for software under the Computer Program Directive 91/25 (now 2009/24) and the Information Society Directive 2001/29. In Case C-393/09, the European Court of Justice held that “the object of the protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code.” As “any form of expression of a computer program must be protected from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its task,” a graphical user interface (GUI) is not protected under the Computer Program Directive, as it does “not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.” While the definition of computer program and the exclusion of GUIs mirror earlier jurisprudence in the Member States and therefore do not come as a surprise, the main significance of Case C-393/09 lies in its interpretation of the Information Society Directive. In confirming that a GUI “can, as a work, be protected by copyright if it is its author’s own intellectual creation,” the ECJ continues the Europeanization of the definition of “work” which began in Infopaq (Case C-5/08). Moreover, the Court elaborated this concept further by excluding expressions from copyright protection which are dictated by their technical function. Even more importantly, the ECJ held that a television broadcasting of a GUI does not constitute a communication to the public, as the individuals cannot have access to the “essential element characterising the interface,” i.e., the interaction with the user. The exclusion of elements dictated by technical functions from copyright protection and the interpretation of the right of communication to the public with reference to the “essential element characterising” the work may be seen as welcome limitations of copyright protection in the interest of a free public domain which were not yet apparent in Infopaq. While Case C-393/09 has given a first definition of the computer program, the pending reference in Case C-406/10 is likely to clarify the scope of protection against nonliteral copying, namely in how far the protection extends beyond the text of the source code to the design of a computer program and where the limits of protection lie as regards the functionality of a program and mere “principles and ideas.” In light of the travaux préparatoires, it is submitted that the ECJ is also likely to grant protection for the design of a computer program, while excluding both the functionality and underlying principles and ideas from protection under the European copyright directives.</abstract>
<subject>
<topic>Algorithmen</topic>
<topic>Benutzeroberfläche</topic>
<topic>Computerprogramm</topic>
<topic>Individualität</topic>
<topic>Originalität</topic>
<topic>Programmcode</topic>
<topic>Programmiersprachen</topic>
<topic>Programmstruktur</topic>
<topic>Richtlinie 2001/29</topic>
<topic>Richtlinie 2009/24</topic>
<topic>Richtlinie 91/250</topic>
<topic>Schnittstelle</topic>
<topic>Software</topic>
<topic>Steuerungsfunktion</topic>
<topic>Werkbegriff</topic>
<topic>öffentliche Wiedergabe</topic>
</subject>
<classification authority="ddc">340</classification>
<relatedItem type="host">
<genre authority="marcgt">periodical</genre>
<genre>academic journal</genre>
<titleInfo>
<title>JIPITEC</title>
</titleInfo>
<part>
<detail type="volume">
<number>2</number>
</detail>
<detail type="issue">
<number>2</number>
</detail>
<date>2011</date>
<extent unit="page">
<start>97</start>
<end>113</end>
</extent>
</part>
</relatedItem>
<identifier type="issn">2190-3387</identifier>
<identifier type="urn">urn:nbn:de:0009-29-30824</identifier>
<identifier type="uri">http://nbn-resolving.de/urn:nbn:de:0009-29-30824</identifier>
<identifier type="citekey">heinze2011</identifier>
</mods>
Download
Full Metadata
| Bibliographic Citation | Journal of intellectual property, information technology and electronic commerce law 2 (2011) 2 |
|---|---|
| Title |
Software als Schutzgegenstand des Europäischen Urheberrechts (ger) |
| Author | Christian Heinze |
| Language | ger |
| Abstract | After 20 years of silence, two recent references from the Czech Republic (Bezpečnostní softwarová asociace, Case C-393/09) and from the English High Court (SAS Institute, Case C-406/10) touch upon several questions that are fundamental for the extent of copyright protection for software under the Computer Program Directive 91/25 (now 2009/24) and the Information Society Directive 2001/29. In Case C-393/09, the European Court of Justice held that “the object of the protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code.” As “any form of expression of a computer program must be protected from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its task,” a graphical user interface (GUI) is not protected under the Computer Program Directive, as it does “not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.” While the definition of computer program and the exclusion of GUIs mirror earlier jurisprudence in the Member States and therefore do not come as a surprise, the main significance of Case C-393/09 lies in its interpretation of the Information Society Directive. In confirming that a GUI “can, as a work, be protected by copyright if it is its author’s own intellectual creation,” the ECJ continues the Europeanization of the definition of “work” which began in Infopaq (Case C-5/08). Moreover, the Court elaborated this concept further by excluding expressions from copyright protection which are dictated by their technical function. Even more importantly, the ECJ held that a television broadcasting of a GUI does not constitute a communication to the public, as the individuals cannot have access to the “essential element characterising the interface,” i.e., the interaction with the user. The exclusion of elements dictated by technical functions from copyright protection and the interpretation of the right of communication to the public with reference to the “essential element characterising” the work may be seen as welcome limitations of copyright protection in the interest of a free public domain which were not yet apparent in Infopaq. While Case C-393/09 has given a first definition of the computer program, the pending reference in Case C-406/10 is likely to clarify the scope of protection against nonliteral copying, namely in how far the protection extends beyond the text of the source code to the design of a computer program and where the limits of protection lie as regards the functionality of a program and mere “principles and ideas.” In light of the travaux préparatoires, it is submitted that the ECJ is also likely to grant protection for the design of a computer program, while excluding both the functionality and underlying principles and ideas from protection under the European copyright directives. |
| Subject | Algorithmen, Benutzeroberfläche, Computerprogramm, Individualität, Originalität, Programmcode, Programmiersprachen, Programmstruktur, Richtlinie 2001/29, Richtlinie 2009/24, Richtlinie 91/250, Schnittstelle, Software, Steuerungsfunktion, Werkbegriff, öffentliche Wiedergabe |
| DDC | 340 |
| Rights | DPPL |
| URN: | urn:nbn:de:0009-29-30824 |
