CJEU Clarifies Copyright Protection for Software Variables
In Short
The Situation: The Court of Justice of the European Union ("CJEU") ruled that modifying temporary variables in the working memory of a computer without enabling the reproduction or further execution of such a program does not constitute copyright infringement under the Directive 2009/24/EC ("Software Directive").
The Result: The ruling resolved a 12-year long dispute between Sony and Datel in Germany over cheat systems for PlayStation consoles.
Looking Ahead: The CJEU's decision provides guidance on the scope of copyright protection for computer programs in the EU, in particular the interpretation of the term "modification," and clarifies that data used during the execution of a program are not protected as an expression of the program. This may have implications for the gaming industry, notably programmers and online dealers, as well as other sectors that rely on software development and innovation.
In 2012, Sony sued Datel in Germany, alleging that Datel's products, which allowed players to alter aspects of the game play of Sony's original games, infringed Sony's copyright in the software code of the games. Datel argued that its products did not modify the source or object code of the games, but only the content of variables stored in the random access memory (RAM) of the console, which were generated by the user's interaction and did not affect the expression of the software. In the last instance, the Bundesgerichtshof (Federal Supreme Court for Civil Matters) stayed the proceedings and asked the CJEU for a preliminary ruling.
In the case C-159/23, the CJEU was asked to interpret the Software Directive, which grants copyright protection to the expression of computer programs, but not to their ideas, principles, methods, or algorithms. Under the Software Directive, the reproduction right covers not only permanent copies, but also temporary copies loaded into the volatile memory of a computer, as they enable the use of the program. The CJEU had to decide whether the modification of only the content of variables in the RAM of a computer, without modifying the source or object code of the program, amounted to copyright infringement under the Software Directive.
The CJEU ruled that such modification did not constitute copyright infringement, as it did not affect the expression of the program, which is embodied in the source and object code. The CJEU explained that the content of the variables constitutes an element of the program in which users use the functionalities of the program, but not an expression of the program itself. The court noted in particular that the modification of the variables did not enable the reproduction or further execution of the program, but rather required that the program be running simultaneously.
The ruling followed the opinion of Advocate General Szpunar, who had argued that the protection of computer programs under the Software Directive should be limited to the code, and not extended to data used during the execution of the program.
The court's decision is consistent with its previous case law, which had excluded the functionality, programming languages, formats of data files, and graphical user interfaces of computer programs from the scope of copyright protection under the Software Directive. Given its reasons, it should also apply to variables stored in the cloud, for instance in the context of cloud gaming or SaaS.
UK Perspective
Following the UK's departure from the EU, on 1 January 2021, UK courts are no longer bound by decisions of the CJEU. Nevertheless, decisions such as the present case remain relevant as they are informed by the context provided by international treaties, such as the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights, to which the UK remains a member. It is, therefore, likely that the CJEU's decision will provide helpful guidance to UK courts, at least on a referential basis, if a similar legal issue is brought within the UK's jurisdiction in the future.
Three Key Takeaways
- The CJEU confirms that copyright protection for computer programs under the Software Directive is limited to the expression of the program in the form of source and object code, and does not cover data used during the execution of the program, such as the content of variables in the RAM of a computer.
- The CJEU's decision may have an impact on the gaming industry, as well as other sectors that rely on software development and innovation, as it clarifies that third-party products that modify temporary variables in the RAM of a computer (and arguably temporary variables stored in the cloud), without modifying the code of the program, do not infringe copyright under the Software Directive.
- While this ruling may create opportunities for new products and services that enhance the user experience (such as third-party add-ons or "hacks" that may enable players to increase their in-game currency, change character attributes, or unlock hidden levels), it is notable, however, that this decision relates to a very specific determination that applies only within the remit of the Software Directive. It does not, therefore, prevent rights holders from enforcing other intellectual property rights or other forms of legal recourse such as unfair competition, depending on the particular facts of the individual case.
