Graphical User Interfaces, screenshots and copyright: a complex relationship

The status of the Graphical User Interface (GUI) of a computer program as a work covered by copyright comes up frequently in legal discussions between software companies, mainly in the context of one company feeling that a competitor makes a product that looks too similar to its own work, and which may therefore infringe on the copyright held on the GUI. This is an interesting avenue, since the argument of infringing visual style can be made in cases where the code implementing the technical functionality of the software is not infringing at all. This can be compared to two cars with the same body style, but with entirely different internals (different engine, dashboard, seats,...).

At the European level, the Court of Justice issued a decision in December 2010 (Bezpečnostní softwarová asociace versus Ministerstvo kultury, AKA Security Software Association versus the Ministry of Culture) that largely affirmed traditional legal thinking on this point: while a GUI is not protected as a computer program as such under the Software Directive, it certainly can be protected as a generic work under the Directive on Copyright and related rights in the information society, provided that normal thresholds for protection are met.

However, the Court also addressed a second question in its ruling: should the displaying of a GUI to the public (in this specific case via a television broadcast) be considered as a communication to the public? The answer might intuitively appear to be a clear 'yes', since this should in principle not be any different from the communication to the public of other protected works, like music or films. However, the Czech court dealing with the case at the national level saw an important distinction in view of the partly functional (as opposed to purely artistic) character of GUIs by raising an insightful question: are GUIs really communicated to the public "when the public is enabled to have sensory perception of the graphic user interface or part thereof" (i.e. the ability to see it on TV), without the possibility of actively exercising control over that program (i.e. without the ability to interact with the GUI)? In other words, the court questioned whether the inability to interact with a partly functional work affected the qualification as a 'communication to the public' requiring the permission of the copyright holder.

Surprisingly, the Court of Justice agreed to the reasoning, finding that the broadcasting of a GUI via television "does not constitute communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive 2001/29' (the Directive on Copyright and related rights in the information society), because 'television viewers receive a communication of that graphic user interface solely in a passive manner, without the possibility of intervening. They cannot use the feature of that interface which consists in enabling interaction between the computer program and the user. Having regard to the fact that, by television broadcasting, the graphic user interface is not communicated to the public in such a way that individuals can have access to the essential element characterising the interface, that is to say, interaction with the user, there is no communication to the public of the GUI".

The ruling is remarkable to say the least, as it seems to imply that creative works with a partly functional component (like GUIs) are only communicated in the legal sense if there is a possibility of interaction with the characterising elements of the work. In other words, merely showing such works would not be a communication requiring the permission of the copyright holder. While the ruling only explicitly covered TV broadcasting, it would stand to reason that the same logic might also apply to the publication of GUI screenshots via websites, or video demos of the interface via YouTube. Similarly, the ruling raises the question to what extent visualisations of other functional protected works (e.g. cars, chairs, smartphones...) would be impacted in the same way. Undoubtedly, this is an area where further rulings will be necessary to clarify the scope of European copyright protection.