62023CJ0159_RES
Case C‑159/23
Sony Computer Entertainment Europe Ltd
v
Datel Design and Development Ltd and Others
(Request for a preliminary ruling from the Bundesgerichtshof)
Judgment of the Court (First Chamber) of 17 October 2024
(Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Legal protection of computer programs – Directive 2009/24/EC – Article 1 – Scope – Forms of expression of a computer program – Concept – Article 4(1)(b) – Alteration of a computer program – Change of the content of the variables stored in the computer’s RAM and used during the running of the program)
Approximation of laws – Copyright and related rights – Directive 2009/24 – Legal protection of computer programs – Scope – Forms of expression of a computer program – Concept – Alteration of a computer program – Change of the content of the variables stored in the computer’s RAM and used during the running of the program – Excluded – Conditions – Content not allowing the reproduction or subsequent creation of the program – Assessment by the national court
(European Parliament and Council Directive 2009/24, Art. 1(1), (2) and (3))
(see paragraphs 31-52, operative part)
Résumé
In a reference for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany), the Court of Justice rules on the unprecedented question of the scope of copyright protection (
1
) of computer programs and, in particular, of the content of the variable data transferred by a protected computer program to the RAM of that computer and used by that program in its running.
Sony Computer Entertainment Europe Ltd (‘Sony’) markets PlayStation games consoles as well as games for those consoles. Until 2014, it offered for sale, among other products, the PlayStation Portable console (‘the PSP console’) and the game MotorStorm: Arctic Edge intended for that console.
Sony applied to the Landgericht Hamburg (Regional Court, Hamburg, Germany) for a cessation of the marketing of products complementary to its game consoles, namely the Action Replay PSP software, as well as the Tilt FX device and software, produced and distributed by Datel Design and Development Ltd and Datel Direct Ltd.
Those products, which work exclusively with Sony’s original games, make it possible, inter alia, to change certain game parameters by presenting the user with game options not provided at that stage of the game by Sony and with the ability to control the PSP console by motion. According to Sony, those products enable users to alter the software which underpins its games in a manner contrary to copyright.
The Regional Court, Hamburg upheld Sony’s claims in part. That judgment, however, was varied on appeal by the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg, Germany), which dismissed Sony’s action in its entirety.
Hearing an appeal on a point of law against that judgment, the Federal Court of Justice has asked the Court whether the content of variables which are transferred by a protected computer program to the RAM of that computer and which are used by the program in its running comes within the scope of copyright protection in the computer program and, if so, whether the transfer of changed variables to that RAM constitutes an alteration of the computer program within the meaning of Directive 2009/24.
Findings of the Court
The Court notes that it is apparent from Article 1(2) and (3) of Directive 2009/24 that ‘expression in any form’ of a computer program, apart from ideas and principles which underlie its constituent elements, is protected by copyright, provided that such a program is original, in the sense that it is the author’s own intellectual creation. It finds that it is apparent from those provisions that the source code and the object code fall within the concept of ‘forms of expression’ of a computer program, within the meaning of that provision, since they allow that program to be reproduced or subsequently created, whereas other elements of that program, such as, inter alia, its functionalities, are not protected. Thus, the protection guaranteed by that directive is limited to the literal expression of the computer program in the source code and object code.
Such an interpretation is supported, inter alia, by applicable international law. The TRIPS Agreement (
2
) provides that computer programs, whether in source or object code, are to be protected as literary works under the Berne Convention for the Protection of Literary and Artistic Works. (
3
) However, within the meaning of that convention and of the TRIPS Agreement, that copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such, which is also supported by the preamble to Directive 2009/24. (
4
)
Furthermore, the interpretation that only the source code and the object code fall within the concept of ‘forms of expression’ of a computer program is consistent with the objectives pursued by the legal protection of computer programs under Directive 2009/24. The objective pursued by the system of protection of computer programs introduced by the EU legislature is to protect the authors of programs against their unauthorised reproduction, which has been made very easy and inexpensive in the digital environment, and against the distribution of ‘pirated’ copies of those programs. On the other hand, it is apparent from its origins that the legal regime for the protection of computer programs does not grant monopolies hindering independent development. The competitors of the author of a computer program are free, once they establish through independent analysis which ideas, rules or principles are being used, to create their own implementation of them in order to create compatible products.
In the case at hand, it is apparent that the software of Datel Design and Development and Datel Direct, in so far as it changes only the content of the variables transferred by a protected computer program to a computer’s RAM and used by that program in its running, does not, as such, enable that program or a part of it to be reproduced, but presupposes, on the contrary, that that program will be run at the same time. The content of the variables is therefore an element of that program by means of which users make use of its features, which is not protected as a ‘form of expression’ of a computer program within the meaning of Article 1(2) of Directive 2009/24, which it is for the referring court to verify.
In conclusion, the Court holds that Article 1(1) to (3) of Directive 2009/24 must be interpreted as meaning that the content of the variable data transferred by a protected computer program to the RAM of a computer and used by that program in its running does not fall within the protection conferred by that directive, in so far as that content does not enable such a program to be reproduced or subsequently created.
(
1
)	Article 1(1) to (3) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (OJ 2009 L 111, p. 16).
(
2
)	Article 10(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘the TRIPS Agreement’), set out in Annex 1C to the Agreement establishing the World Trade Organization (WTO), signed in Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1).
(
3
)	Berne Convention for the Protection of Literary and Artistic Works, signed in Berne on 9 September 1886, in the version resulting from the Paris Act of 24 July 1971.
(
4
)	Recitals 7, 11 and 15 of Directive 2009/24.