There is a lot of noise (for example, here, here, here, here, and here) out there about this week’s verdict in Oracle v. Google, especially about the following question: Are interfaces protected by copyright? I stumbled across quite a few places (see here, here, and here) where experts pointed to the ECJ’s SAS Institute v. World Programming ruling while discussing this question. According to them, the ECJ clearly stated last week that interfaces enjoy no copyright protection. Is this really what the ECJ said?
Well – probably yes, kind of.
Let’s take a look at the actual ruling. To start with, the court doesn’t mention the word “interface” but talks about – formats of data files:
“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 to 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.”
What does this mean for the legal treatment of interfaces? The Advocate General had equated formats with interfaces, stating that formats of data files were “logic interfaces”. This is not wrong, if you define the term “interface” very broadly. However, it’s not what most people would consider a typical interface. And note that the ECJ did for some reason not take on this argument. Maybe it’s fair to assume that the court purposefully avoided any statement involving the term “interface”?
Back to the ruling. A few paragraphs further down, we read:
“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.”
So the court distinguishes formats of data files on the one hand and code relating to this format on the other. This makes sense as it reflects the difference between the structure of data and the specific implementation of a program writing or reading these data.
What can we make of all this? It seems that the EU court’s view comes down to the following rule of thumb: Copyright protection covers the code as a form of expression; if you don’t touch the code (making, for example, use of functions, programming interfaces or data structures the program uses), you are outside the realm of copyright. This is also what might explain why the court didn’t bother to talk about interfaces might lie: “Interface” as such is just a far to blurry term with a wide range of possible interpretations (including some use of the related code). So, even if you hear that in the EU interfaces are not copyrighted, there is no “API defense” against infringement claims, which would make the copying, altering, or distributing of APIs legal, even if this includes to copy, alter or distribute related code.
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