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BSA v Ministry of Culture

Written by Jean-Michel Omanga on 14 January 2011

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Background

In April 2001 the BSA applied to the Ministry of Culture for authorisation for the collective administration of copyright in computer programs, under Paragraph 98 of the Czech Copyright Law, its objective being to secure the right to the collective administration of graphic user interfaces (GUI).

The Ministry rejected the BSA application. A further appeal ended up with the following questions being referred to the Court of Justice for a preliminary ruling.

Legal questions

Should Article 1(2) of the software Directive be interpreted as meaning that for the purposes of the copyright protection of a computer program as a work under that directive, the phrase "expression in any form of a computer program" also includes the graphic user interface of the computer programme or part thereof?

If the answer to the first question is in the affirmative, does television broadcasting, whereby the public is enabled to have sensory perception of the graphic user interface of a computer program or part thereof, albeit without the possibility of actively exercising control over that program, constitute making a work or part thereof available to the public within the meaning of article 3(1) of Directive 2001/29?

Held

- A graphic user interface is not a form of expression of a computer program within the meaning of article 1(2) of Council Directive 91/250 and cannot be protected by copyright as a computer program under that directive. Nevertheless, such an interface can be protected by copyright as a work by directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society if that interface is its author's own intellectual creation.

- Television broadcasting of a graphic user interface does not constitute communication to the public of a work protected by copyright within the meaning of article 3(1) of directive 2001/29.

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