“35. In a judgment delivered after the reference for a preliminary ruling had been lodged in the present case, the Court interpreted Article 1(2) of Directive 91/250 as meaning that the object of the protection conferred by that directive is the expression in any form of a computer program, such as the source code and the object code, which permits reproduction in different computer languages (judgment of22 December 2010 inCase C-393/09 Bezpečnostní softwarová asociace[2010] ECR I-0000 , paragraph 35). 36. In accordance with the second phrase of the seventh recital in the preamble to Directive 91/250, the term ‘computer program’ also includes preparatory design work leading to the development of a computer program, provided that the nature of the preparatory work is such that a computer program can result from it at a later stage. 37. Thus, the object of protection under Directive 91/250 includes the forms of expression of a computer program and the preparatory design work capable of leading, respectively, to the reproduction or the subsequent creation of such a program (Bezpečnostní softwarová asociace, paragraph 37). 38. From this the Court concluded that the source code and the object code of a computer program are forms of expression thereof which, consequently, are entitled to be protected by copyright as computer programs, by virtue of Article 1(2) of Directive 91/250. On the other hand, as regards the graphic user interface, the Court held that such an interface does not enable the reproduction of the computer program, but merely constitutes one element of that program by means of which users make use of the features of that program (Bezpečnostní softwarová asociace, paragraphs 34 and 41). 39. On the basis of those considerations, it must be stated that, with regard to the elements of a computer program which are the subject of Questions 1–5, neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program for the purposes of Article 1(2) of Directive 91/250. 40. As the Advocate General states in point 57 of his Opinion, to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development. 41. Moreover, point 3.7 of the explanatory memorandum to the Proposal for Directive 91/250 [COM(88) 816] states that the main advantage of protecting computer programs by copyright is that such protection covers only the individual expression of the work and thus leaves other authors the desired latitude to create similar or even identical programs provided that they refrain from copying. 42. With respect to the programming language and the format of data files used in a computer program to interpret and execute application programs written by users and to read and write data in a specific format of data files, these are elements of that program by means of which users exploit certain functions of that program. 43. In that context, it should be made clear that, if a third party were to procure the part of the source code or the object code relating to the programming language or to the format of data files used in a computer program, and if that party were to create, with the aid of that code, similar elements in its own computer program, that conduct would be liable to constitute partial reproduction within the meaning of Article 4(a) of Directive 91/250. 44. As is, however, apparent from the order for reference, WPL did not have access to the source code of SAS Institute’s program and did not carry out any decompilation of the object code of that program. By means of observing, studying and testing the behaviour of SAS Institute’s program, WPL reproduced the functionality of that program by using the same programming language and the same format of data files. 45. The Court also points out that the finding made in paragraph 39 of the present judgment cannot affect the possibility that the SAS language and the format of SAS Institute’s data files might be protected, as works, by copyright under Directive 2001/29 if they are their author’s own intellectual creation (see Bezpečnostní softwarová asociace, paragraphs 44 to 46). 46. Consequently, the answer to Questions 1–5 is that Article 1(2) of Directive 91/250 must be interpreted as meaning that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive.”
“48. In the main proceedings, it is apparent from the order for reference that WPL lawfully purchased copies of the Learning Edition of SAS Institute’s program, which were supplied under a “click-through” licence which required the purchaser to accept the terms of the licence before being permitted to access the software. The terms of that licence restricted the licence to non-production purposes. According to the national court, WPL used the various copies of the Learning Edition of SAS Institute’s program to perform acts which fall outside the scope of the licence in question. 49. Consequently, the national court raises the question as to whether the purpose of the study or observation of the functioning of a computer program has an effect on whether the person who has obtained the licence may invoke the exception set out in Article 5(3) of Directive 91/250 . 50. The Court observes that, from the wording of that provision, it is clear, first, that a licensee is entitled to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program. 51. In this respect, Article 5(3) of Directive 91/250 seeks to ensure that the ideas and principles which underlie any element of a computer program are not protected by the owner of the copyright by means of a licensing agreement. 52. That provision is therefore consistent with the basic principle laid down in Article 1(2) of Directive 91/250, pursuant to which protection in accordance with that directive applies to the expression in any form of a computer program and ideas and principles which underlie any element of a computer program are not protected by copyright under that directive. 53. Article 9(1) of Directive 91/250 adds, moreover, that any contractual provisions contrary to the exceptions provided for in Article 5(2) and (3) of that directive are null and void. 54. Secondly, under Article 5(3) of Directive 91/250, a licensee is entitled to determine the ideas and principles which underlie any element of the computer program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing that program which he is entitled to do. 55. It follows that the determination of those ideas and principles may be carried out within the framework of the acts permitted by the licence. 56. In addition, the 18th recital in the preamble to Directive 91/250 states that a person having a right to use a computer program should not be prevented from performing acts necessary to observe, study or test the functioning of the program, provided that these acts do not infringe the copyright in that program. 57. As the Advocate General states in point 95 of his Opinion, the acts in question are those referred to in Article 4(a) and (b) of Directive 91/250, which sets out the exclusive rights of the rightholder to do or to authorise, and those referred to in Article 5(1) thereof, relating to the acts necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction. 58. In that latter regard, the 17th recital in the preamble to Directive 91/250 states that the acts of loading and running necessary for that use may not be prohibited by contract. 59. Consequently, the owner of the copyright in a computer program may not prevent, by relying on the licensing agreement, the person who has obtained that licence from determining the ideas and principles which underlie all the elements of that program in the case where that person carries out acts which that licence permits him to perform and the acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner in that program. 60. As regards that latter condition, Article 6(2)(c) of Directive 91/250 relating to decompilation states that decompilation does not permit the information obtained through its application to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright. 61. It must therefore be held that the copyright in a computer program cannot be infringed where, as in the present case, the lawful acquirer of the licence did not have access to the source code of the computer program to which that licence relates, but merely studied, observed and tested that program in order to reproduce its functionality in a second program. 62. In those circumstances, the answer to Questions 6 and 7 is that Article 5(3) of Directive 91/250 must be interpreted as meaning that a person who has obtained a copy of a computer program under a licence is entitled, without the authorisation of the owner of the copyright, to observe, study or test the functioning of that program so as to determine the ideas and principles which underlie any element of the program, in the case where that person carries out acts covered by that licence and acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner of the copyright in that program.”
“64. It is apparent from the order for reference that the user manual for SAS Institute’s computer program is a protected literary work for the purposes of Directive 2001/29. 65. The Court has already held that the various parts of a work enjoy protection under Article 2(a) of Directive 2001/29, provided that they contain some of the elements which are the expression of the intellectual creation of the author of the work (Case C-5/08 Infopaq International[2009] ECR I-6569 , paragraph 39). 66. In the present case, the keywords, syntax, commands and combinations of commands, options, defaults and iterations consist of words, figures or mathematical concepts which, considered in isolation, are not, as such, an intellectual creation of the author of the computer program. 67. It is only through the choice, sequence and combination of those words, figures or mathematical concepts that the author may express his creativity in an original manner and achieve a result, namely the user manual for the computer program, which is an intellectual creation (see, to that effect, Infopaq International, paragraph 45). 68. It is for the national court to ascertain whether the reproduction of those elements constitutes the reproduction of the expression of the intellectual creation of the author of the user manual for the computer program at issue in the main proceedings. 69. In this respect, the examination, in the light of Directive 2001/29, of the reproduction of those elements of the user manual for a computer program must be the same with respect to the creation of the user manual for a second program as it is with respect to the creation of that second program. 70. Consequently, in the light of the foregoing considerations, the answer to Questions 8 and 9 is that Article 2(a) of Directive 2001/29 must be interpreted as meaning that the reproduction, in a computer program or a user manual for that program, of certain elements described in the user manual for another computer program protected by copyright is capable of constituting an infringement of the copyright in the latter manual if—this being a matter for the national court to ascertain—that reproduction constitutes the expression of the intellectual creation of the author of the user manual for the computer program protected by copyright.”
“43. Nevertheless, even if the national court has limited its question to the interpretation of Article 1(2) of Directive 91/250, such a situation does not prevent the Court from providing the national court with all the elements of interpretation of European Union law which may enable it to rule on the case before it, whether or not reference is made thereto in the question referred (see, to that effect,Case C-392/05 Alevizos[2007] ECR I-3505 , paragraph 64 and the case-law cited). 44. In that regard, it is appropriate to ascertain whether the graphic user interface of a computer program can be protected by the ordinary law of copyright by virtue of Directive 2001/29. 45. The Court has held that copyright within the meaning of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation (see, to that effect, with regard to Article 2(a) of Directive 2001/29, Infopaq International, paragraphs 33 to 37). 46. Consequently, the graphic user interface can, as a work, be protected by copyright if it is its author’s own intellectual creation. 47. It is for the national court to ascertain whether that is the case in the dispute before it. 48. When making that assessment, the national court must take account, inter alia, of the specific arrangement or configuration of all the components which form part of the graphic user interface in order to determine which meet the criterion of originality. In that regard, that criterion cannot be met by components of the graphic user interface which are differentiated only by their technical function.”
“… the court is and should be less ready to allow a very late amendment than it used to be in former times, and … a heavy onus lies on a party seeking to make a very late amendment to justify it, as regards his own position, that of the other parties to the litigation, and that of other litigants in other cases before the court.”
“there will only be reproduction of a substantial part of a literary work … where what has been reproduced represents the expression of the intellectual creation of the author of that literary work.”