Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 25 April 2024 (1)
Case C‑159/23
Sony Computer Entertainment Europe Ltd
v
Datel Design and Development Ltd,
Datel Direct Ltd,
JS
(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))
(Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Legal protection of computer programs – Directive 2009/24/EC – Article 1 – Scope – Restricted acts – Article 4(1) – Alteration of a computer program – Change to the content of the variables stored in the local memory and used during the running of the program)
Introduction
1. Under both EU law and the international law applicable in the European Union, (2) computer programs must be protected as literary works within the meaning of the Berne Convention. (3) Their classification as such may raise doubts. Indeed, while a computer program can take the form of a ‘text’, that is to say, a list of instructions to be executed by the computer, it is a specific kind of text in many respects, and one which does not resemble any other category of literary works.
2. The purpose of such a program is not to be read or run in any other manner by the user directly, but to control the operation of a machine capable of processing information, namely a computer. The useable form of a computer program, that in which such programs are generally distributed to users, is not readable by humans, since it is meant to be run by the machine. Moreover, even when in a human-readable form a computer program is intelligible only to qualified persons, since it is written in an artificial language (programming language), which more often than not is inaccessible to average users of those programs. This means that computer programs as protected works have one particularly significant feature from the perspective of copyright: given the way in which computers work, each use of a program normally requires one or more acts of reproduction of it, acts which are subject to authorisation by the holder of the copyright in the program.
3. It is therefore unsurprising that the protection of computer programs, as it is conceived in EU law, differs markedly from ‘ordinary’ copyright rules and is more akin to a special protection scheme. (4) That protection scheme affords rightholders greater control, on the one hand, over the actions of users in their private sphere, a sphere which usually falls outside the scope of copyright, and, on the other hand, over acts which do not normally come under the author’s exclusive rights, such as the alteration of the work by the user for his or her own needs. This control is so extensive that even the mere acquaintance of the work, which is crucial in the normal case of a literary work, is allowed only exceptionally, to a limited degree and subject to conditions. Moreover, the exceptions normally provided for in copyright, starting with the ‘private copy’ exception, are excluded from the protection scheme for computer programs.
4. Protection as literary works, however, has one major inherent limitation, namely that it is, in principle, limited to the form of expression of the work, in other words to the text.
5. The question in the present case is whether – and, if so, to what extent – the protection conferred by EU law on computer programs may apply beyond the text itself. In other words: how far can we stretch the concept of ‘text’ where such programs are concerned?
6. Specifically, this involves determining, in the context of video games, whether it is permissible for third parties to create and users to use, without the authorisation of the holders of the copyright in those games, programs which make a game easier by circumventing certain difficulties designed by its author, commonly referred to as ‘cheat software’. The holders of the copyright in those video games wish, it appears to me, to have ‘the best of both worlds’, that is to say, to place under the very broad protection of computer programs elements which, at the very most, could claim much more limited protection under ‘ordinary’ copyright.
7. The implications of this case go beyond the narrow confines of video games, however, as software which allows computer programs to be used differently from how they were originally designed may exist in other sectors, too.
Legal context
International law
8. Under Article 4 of the World Intellectual Property Organization (WIPO) Copyright Treaty, adopted in Geneva on 20 December 1996 (5):
‘Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.’
9. An analogous provision appears in Article 10(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights, (6) according to which:
‘Computer programs, whether in source or object code, shall be protected as literary works under the [Berne Convention].’
European Union law
10. Article 1(2)(a) of Directive 2001/29/EC (7) provides:
‘Except in the cases referred to in Article 11, this Directive shall leave intact and shall in no way affect existing Community provisions relating to:
(a) the legal protection of computer programs’.
11. Under Article 2(a) of that directive:
‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent, reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works’.
12. Article 1 of Directive 2009/24/EC (8) provides:
‘1. In accordance with the provisions of this Directive, Member States shall protect computer programs, by copyright, as literary works within the meaning of the [Berne Convention]. For the purposes of this Directive, the term “computer programs” shall include their preparatory design material.
2. Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive.
3. A computer program shall be protected if it is original in the sense that it is the author’s own intellectual creation. No other criteria shall be applied to determine its eligibility for protection.
…’
13. Under Article 4(1)(a) and (b) of that directive:
‘Subject to the provisions of Articles 5 and 6, the exclusive rights of the rightholder within the meaning of Article 2 shall include the right to do or to authorise:
(a) the permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole; in so far as loading, displaying, running, transmission or storage of the computer program necessitate such reproduction, such acts shall be subject to authorisation by the rightholder;
(b) the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program’.
14. In accordance with Article 5(1) of the said directive:
‘In the absence of specific contractual provisions, the acts referred to in points (a) and (b) of Article 4(1) shall not require authorisation by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction.’
German law
15. The abovementioned provisions of Directive 2009/24 were transposed into German law, inter alia, in Paragraphs 69a and 69c of the Gesetz über Urheberrecht und verwandte Schutzrechte – Urheberrechtsgesetz (Law on copyright and related rights) of 9 September 1965, (9) as amended by the Law of 23 June 2021. (10)
Facts, procedure and questions referred for a preliminary ruling
16. Sony Computer Entertainment Europe Ltd (‘Sony’), a company established in the United Kingdom, markets, as the exclusive licensee for Europe, PlayStation games consoles and games for those consoles. Until 2014, Sony thus marketed, inter alia, the PlayStation Portable (‘the PSP’) and the game ‘MotorStorm: Arctic Edge’, intended for that console.
17. The companies Datel Design and Development Ltd and Datel Direct Ltd (together ‘Datel’), which are also established in the United Kingdom, develop, produce and distribute software, in particular complementary products for Sony games consoles, including the software ‘Action Replay PSP’, as well as a device, the Tilt FX, which allows the PSP to be controlled by motion.
18. Datel’s software works exclusively with Sony’s original games. The software is used by connecting the PSP to a computer and then inserting into the PSP a USB stick which loads that software. After restarting the PSP, the user is able to bring up an additional tab on that console allowing changes to be made to Sony’s games. Those include, for example, in the case of the game ‘MotorStorm: Arctic Edge’, options enabling the removal of all restrictions on use of the ‘booster’ function or on the choice of drivers, some of whom are usually unlocked only once a particular number of points have been obtained.
19. At first instance in the case in the main proceedings, Sony claimed, in essence, that Datel should be prohibited from marketing its software intended to work with Sony’s games and consoles. By judgment of 24 January 2012, the Landgericht Hamburg (Regional Court, Hamburg, Germany) 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.
20. The referring court, before which an appeal on a point of law (Revision) has been brought against the judgment of the Oberlandesgericht Hamburg (Higher Regional Court, Hamburg), observes that success of that appeal turns on whether the use of the Datel software at issue infringes the exclusive right to alter a computer program. That issue raises questions as to the interpretation of Article 1(1) to (3) and Article 4(1)(b) of Directive 2009/24.
21. According to that court, in the case in the main proceedings, Sony claims inter alia that, by means of Datel software, users alter, in a manner contrary to copyright, the computer programs which underpin its games, and that Datel is responsible for that unlawful alteration. The parties, however, agree that neither the Datel software at issue nor its users access or in any way change the code of those programs. That software, which is run at the same time as Sony’s computer program, changes only the content of the variables which the protected computer program has transferred to the RAM (random-access memory) and uses during the running of that program.
22. In those circumstances, the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is there an interference with the protection afforded to a computer program under Article 1(1) to (3) of Directive [2009/24] in the case where it is not the object code or the source code of a computer program, or the reproduction thereof, that is changed, but instead another program running at the same time as the protected computer program changes the content of variables which the protected computer program has transferred to the [RAM] and uses in the running of the program?
(2) Is an alteration within the meaning of Article 4(1)(b) of Directive [2009/24] present in the case where it is not the object code or the source code of a computer program, or the reproduction thereof, that is changed, but instead another program running at the same time as the protected computer program changes the content of variables which the protected computer program has transferred to the [RAM] and uses in the running of the program?’
23. The request for a preliminary ruling was received at the Court on 15 March 2023. Written observations were lodged by the parties to the main proceedings and the European Commission. The same parties were represented at the hearing held on 25 January 2024.
Analysis
24. The dispute in the main proceedings concerns the alleged infringement of Sony’s exclusive right, based on Article 4(1)(b) of Directive 2009/24, to authorise any alteration of a computer program in which that company holds the copyright. The referring court submits two questions for a preliminary ruling, which in its view are separate. The answer to the first question, however, necessarily determines the answer that will be given to the second. I will therefore touch on that second question only very briefly.
25. As a preliminary point, I must observe that the main proceedings and, therefore, the questions referred for a preliminary ruling concern only the alleged infringements by Datel of Sony’s exclusive rights to its computer programs resulting from the use of Datel software by the users of those programs. Those questions therefore do not concern any infringements of Sony’s rights committed by Datel during the development of the latter’s software, or Datel’s liability in respect of any infringement of Sony’s rights other than copyright, such as trade mark infringement or unfair competition, or the liability of the users of the software at issue. I will therefore not address those matters in this Opinion.
26. However, even though the dispute in the main proceedings likewise does not concern, as was confirmed at the hearing, any infringement of Sony’s copyright in elements of its video games other than the computer programs underpinning those games, I will briefly examine that issue in so far as it was raised by the Commission and discussed by the parties at the hearing.
The first question
27. By its first question, the referring court asks, in essence, whether Article 1(1) to (3) of Directive 2009/24 must be interpreted as meaning that the protection conferred by that directive pursuant to that provision extends to the content of the variables which the protected computer program has transferred to the RAM of the computer and uses in running it, in the situation in which another program operating at the same time as the protected computer program changes that content, without however the object code or the source code of the latter program being changed.
28. In other words, the referring court asks the Court to specify the object of the protection conferred on computer programs by Directive 2009/24.
The object of the protection conferred by Directive 2009/24
29. Directive 2009/24 does not define the concept of ‘computer program’. According to the explanatory memorandum to Directive 91/250/EEC, (11) the directive that was codified by Directive 2009/24, that absence of definition is explained by the concern to avoid such a definition becoming outdated with technical advances. (12) That caution seems unnecessary, since it is still entirely possible to refer to the definition contained in that explanatory memorandum, according to which that concept refers to ‘a set of instructions the purpose of which is to cause an information processing device, a computer, to perform its functions’. (13) That definition, the relevance of which has been in no way affected by technical advances, is a perfect starting point for analysing the object of the protection conferred by Directive 2009/24.
30. Despite its lack of legal definition of the concept of ‘computer program’, Directive 2009/24 does contain a number of clarifications relating to the object and nature of the protection conferred by it.
31. Thus, in the first place, Article 1(1) of that directive provides that computer programs are to be protected, by copyright, as literary works. That statement has consequences as regards both the scope and the nature of the protection at issue.
32. In the second place, pursuant to Article 1(2) of the same directive, the protection is to apply to the expression in any form of a computer program, with the exception of any ideas or principles underlying any element of such a program. Given that that is a general principle of copyright, it is significant that the legislature deemed it necessary to affirm it expressly in the normative part of that directive.
33. Lastly, in the third place, Article 1(3) of that directive determines what is required in order to be eligible for protection, providing that protection is afforded to any computer program which is original, that is to say, which is the author’s own intellectual creation, and that no other criteria may be applied. While that provision does not set a particularly high bar for a computer program to be eligible for the protection at issue, by precluding inter alia, in accordance with recital 8 of Directive 2009/24, any tests as to the qualitative or aesthetic merits of the program, it nevertheless appears to exclude protection of those elements which, taken in isolation, are not the intellectual creation of the author of the program.
34. Those elements of the definition of the object of the protection contained in Directive 2009/24 itself have been expanded upon and specified in the Court’s case-law.
35. Thus, referring to Article 10(1) of the TRIPs Agreement, the Court considered, in the judgment in Bezpečnostní softwarová asociace, (14) that the protection conferred by Directive 91/250 – whose relevant provisions were identical to those of Directive 2009/24 – covers any form of a computer program which permits reproduction in different computer languages, such as, inter alia, the source code and the object code. (15) In that judgment, the Court held that a user interface does not constitute such a form of expression of a computer program, but merely one element of that program by means of which users make use of the features of that program, and therefore does not enjoy the protection provided by Directive 91/250. (16)
36. Relying on those considerations, the Court went on to exclude from the protection conferred by Directive 91/250 elements such as the functionalities of a computer program, the programming language and the format of the data files used by such a program. (17) The sole exception concerned the situation in which the parts of the source code or of the object code relating to the programming language or to the format of the data files are copied, in which case there would be a partial reproduction of the computer program. (18) That clarification does not, however, concern the functionalities of a program, since the distinction between the code (source or object) of a program and its functionalities is clear and precise.
37. It follows from that case-law that, in practice, the forms of expression of the computer programs protected under Directive 2009/24 are the source code and the object code, (19) since they allow the particular program to be reproduced, in whole or in part. By contrast, other elements of a computer program in the broader sense, such as, inter alia, its functionalities, are not protected by that directive.
38. Such a reading of Directive 2009/24 – or of the directive that preceded it – as limiting protection to the source code and to the object code of a computer program is consistent with the nature of protection by copyright, as literary works, the protection scheme chosen by the EU legislature. Such protection necessarily covers the text of the work, in so far as, in the case of a literary work, the expression of the author’s intellectual creation is reflected in the text. In the case of a computer program, however, the text is the code, that is to say a structured set of instructions according to which the machine must perform the tasks set by the author of the program.
39. It is admittedly true that a computer program in the broad sense cannot be reduced to its code. Indeed, what is of interest to the user, and what prompts him or her to pay the purchase price for a computer program, is not the ability to access that program’s code, an option that will not usually be available in any case as the program is delivered to him or her solely in the form of the object code, but rather the functionalities of the program which, with the aid of a computer, enable a particular result to be achieved.
40. It is, however, precisely the specificity of the protection of computer programs by copyright that is behind the intentional restriction of that protection to the ‘literal’ expression of the program in the form of code. In the case of Directive 2009/24, that intention on the part of the EU legislature comes through very clearly from Article 1(1) and (2) of that directive, according to which computer programs are to be protected as literary works and that protection applies only to their expression, to the exclusion of the underlying ideas and principles. Those stipulations leave little discretion in interpreting the provisions of the directive as regards the object of the protection and its limits.
41. Limiting the protection of computer programs to their expression in code form is likewise consistent with the objective of that protection. That objective is to protect the authors of programs against their unauthorised reproduction and copying, which have been made very easy and inexpensive in the digital environment, and against the distribution of ‘pirated’ copies of those programs. However, the protection of computer programs must not hinder the development of competing or compatible software, provided that that software is not merely copies of existing programs, or the use of the programs by legitimate users in their private sphere. (20) It is therefore logical that the Court has limited protection to those forms of expression which enable the computer program to be reproduced in whole or in part. (21)
42. It is in the light of those observations that the issue raised by the first question must be analysed.
Application in the present case
43. I recall that the first question concerns whether the protection of computer programs conferred by Directive 2009/24 extends to the ‘content of the variables’ which such a program transfers to the computer’s memory and then uses while that program is running. It is therefore necessary beforehand to consider what is meant by the term ‘content of the variables’ used by the referring court.
44. As Sony explains in its observations, in IT, ‘variable’ refers to a location in a computer’s memory to which information – data, in other words – is transferred while a computer program is running and which that program can access in order to use that information in the performance of its tasks. The program’s code normally defines the parameters of the variable, such as its location in the memory, its name, the type of data that can be transferred to it, etc. (22) The specific information transferred to such a location is called the ‘value’ of the variable. Although the parameters of the variable do not change while the program is running, its value can change according to the information that the program receives from the outside, for example from the user.
45. As I have already indicated, the parameters of the variables are integral components of the program’s code and, subject to their originality, enjoy the protection conferred by Directive 2009/24.
46. However, it is apparent from the outline of the facts that those parameters are not changed by the Datel software at issue. What is changed is the value of the variables, that is to say, the data transferred to those locations in the computer’s memory which are then taken into account by Sony’s program to perform different tasks in accordance with the instructions written into its code. By the term ‘content of the variables’, the referring court is therefore necessarily referring to the value of the variables. Accordingly, the first question concerns whether Directive 2009/24 allows the holder of the copyright in a computer program to object to the changing of the value of the variables inserted into the computer’s memory when that program is running, on account of the operation of another program, as compared with the value that would have been entered solely by virtue of the operation of the first program.
47. That question must, in my view, be answered in the negative for several reasons.
48. In the first place, the value of the variables is not an element of a computer program’s code. They are merely data, external to the code, which the computer produces and reuses when running the program. In the same way, the content of the present Opinion is external data from the perspective of the word processing software used to draft it. Those data do not exist at the moment that the program is created by its author or when it is loaded into the computer’s memory, since they are generated only while the program is running. They are therefore not such as to enable the program – or even a part of it – to be reproduced. As I have mentioned, (23) the protection conferred by Directive 2009/24 is, according to the case-law of the Court, limited to computer program code, since it is the code – both the source code and the object code – that enables the program to be reproduced.
49. In the second place, the value of the variables does not satisfy the criterion of originality set out in Article 1(3) of Directive 2009/24, since it is not the program author’s own intellectual creation. In the case of programs such as Sony’s video games, the value of the variables at issue is the result of the progress in the game and, ultimately, the result of the player’s behaviour. It is indeed true that the author designed the categories of the variables that are recorded as well the rules whereby their value is determined in the course of the game. However, that value itself escapes the author’s creative control, since it is necessarily dependent on factors which cannot be foreseen in advance, such as the player’s behaviour. That value therefore cannot enjoy copyright protection.
50. In the third place, as the Commission also observes, the value of the variables generated by the program is merely transitory, temporary and provisional, since it can change while the program is running and is often reset to zero when that program is next run. However, while the Court has accepted that the expression of the author’s creation does not necessarily have to be permanent to enjoy the protection conferred by Directive 2009/24, it has nevertheless required that the object of the protection be identifiable with sufficient precision and objectivity. (24) In my view, and contrary to what Sony claims, an element such as the value of the variables generated by a computer program when it is running, which is not only ephemeral but also constantly changing, both while that program is running and upon each subsequent time that it is run, does not satisfy that requirement, particularly since those changes are determined not by the author’s creation but by external factors, such as the actions of the users of the work.
51. I am bound to note that, in the present case, that problem cannot be resolved by taking the view that copyright protection extends to all possible values of the variables contained in a computer program, because, if that were the case, there would be no infringement. Nor does software such as Datel’s change the variables’ parameters, but only their value. Accordingly, if all possible values were part of the protected program, there would be no alteration.
52. However, on reading Sony’s observations, it appears that it is not so much the values of the variables taken in isolation that that company wishes to have protected, but rather the effects that those different values have on the course of the game or, as Sony’s puts it, ‘the game experience created by the programmer’.
53. According to Sony, the inventor’s creativity is shown throughout the course of the program. Yet it is the value of the variables which indicates, among the different possible sequences of the program, which one will actually be chosen. Those stages of the course of the program are necessary to achieve the form of expression of that program, whose running thus follows certain game rules which are stored in the source code as the essential result of the work done by the game’s developer.
54. It nevertheless appears to me that, by the expressions ‘game experience’, ‘course of the game’, ‘achieve the form of expression’ of the program or ‘game rules’, Sony is in fact referring to the operation of the program or to the ideas and principles underlying that program. Sony moreover acknowledges in its observations that, in this case, the changing of the variables relates to the operation of the program and that changing a variable is equivalent to intervening in the running of the program.
55. Contrary to what Sony claims, however, the case-law cited in points 35 and 36 of this Opinion does not concern ‘specifically the independent protection of functionalities … and user interfaces’, such that certain changes to the operation of the program could come under the author’s exclusive rights. That case-law defines the scope of the protection conferred by Directive 2009/24 by excluding, inter alia, the functionalities of computer programs, that is to say the tasks which those programs can make a computer perform and the way in which they will be performed.
56. It is true, however, that the case-law in question relates not to alteration, as in this case, but to the reproduction or copying of elements for which protection was sought. Nevertheless, I see no reason not to transpose that case-law to the present case. In the first place, in the absence of an express stipulation to that effect in the text of Directive 2009/24, the object of the protection cannot be different depending on the exclusive right concerned. In the second place, from the perspective of the objective of the protection, the alteration of the manner in which a computer program operates by its legitimate user is far less harmful to the interests of the holder of the copyright in that program than the reproduction of the functionalities of that program by the manufacturer of a competing program. There is therefore no reason for protection against such an alteration to be more extensive than that provided against reproduction.
57. I am therefore of the view that, given both the wording of the relevant provisions of Directive 2009/24 and of the relevant case-law, (25) for a legitimate user of a computer program to alter, while using that program and without tampering with its code, the way in which the program operates, in a manner contrary to its creator’s intentions, whether with or without the aid of third-party software, does not constitute an infringement of the copyright in the computer program. In the same way, the author of a detective novel cannot prevent the reader from skipping to the end of the novel to find out who the killer is, even if that would spoil the pleasure of reading and ruin the author’s efforts to maintain suspense. The protection sought by Sony is moreover illusory: a player may simply not wish or not be able to advance in the game in the manner imagined by its author and the game will not proceed as intended. Would this then also constitute interference with the rights of the holder?
58. Finally, Sony claims – and therein, it seems to me, lies the rub – that the Datel program in question ‘latches onto [Sony’s] program like a parasite’. It is however necessary to observe that that argument in fact concerns a question relating to the law on unfair competition. By contrast, as far as copyright is concerned, while that area of law protects against counterfeiting and piracy, it in no way protects against the use of the work of another as the basis for his, her or its own creation, provided that there is no unlawful reproduction of the protected work.
Proposed answer
59. It follows from the foregoing that, in my view, Article 1(1) to (3) of Directive 2009/24 must be interpreted as meaning that the protection conferred by that directive pursuant to that provision does not extend to the content of the variables which the protected computer program has transferred to the RAM of the computer and uses in running it, in the situation in which another program operating at the same time as the protected computer program changes that content, without however the object code or the source code of the latter program being changed.
The second question
60. By its second question, the referring court asks, in essence, whether the situation described in the first question involves an act subject to the exclusive right of the author under Article 4(1)(b) of Directive 2009/24, that is to say, an act of alteration of a computer program. According to the explanations provided in the request for a preliminary ruling, this second question is separate from the answer that will be given to the first. It is thus a question of whether there can be an alteration of a computer program notwithstanding the fact that the content of the variables is not subject to the protection conferred by Directive 2009/24.
61. The answer to the second question thus worded can only be in the negative. The scope of the exclusive rights under Directive 2009/24 cannot be broader than the object of the protection conferred by that directive. In other words, where Article 4(1)(b) of that directive refers to the ‘alteration of a computer program’, it is necessary to understand ‘computer programs’ to mean the elements protected pursuant to Article 1 of the same directive. The answer to the second question therefore results directly from that which will be given to the first, such that there is no need to answer the second question separately.
Additional observations
62. I wish to supplement my analysis of the present case by making a few comments concerning, first, the circumstances of the dispute in the main proceedings and, second, the questions raised in the Commission’s observations.
The person responsible for the alteration
63. If, despite the answer that I propose to give to the first question, the Court were to take the view that the protection conferred by Directive 2009/24 extended to the content of the variables at issue in the dispute in the main proceedings, it should, in my view, in order to provide the referring court with a complete answer useful for the resolution of that dispute, address the question of who would be responsible for any infringement of the copyright in those variables on account of the use of software such as Datel’s.
64. The dispute in the main proceedings pits Sony against Datel and concerns Datel’s liability. However, that liability arises not from an infringement of Sony’s copyright during the development of the software by Datel, but from the unauthorised alteration of Sony’s computer program with the aid, admittedly, of that software, but by users of the said computer program, the majority of whom are, undoubtedly, lawful acquirers within the meaning of Article 5(1) of Directive 2009/24. It is therefore, in principle, those users who must be held liable, since it is they who are committing the act subject to authorisation, namely the alteration of the computer program. Datel is simply providing them with the necessary tool, in the form of its software.
65. The parties were questioned on that point at the hearing. Sony and the Commission are of the view that the Court should expand the group of liable persons to software manufacturers, such as Datel, by analogy with its case-law on the right of communication to the public, enshrined in Article 3 of Directive 2001/29.
66. It is true that, in that case-law, the Court held directly responsible for infringements of the right of communication to the public certain categories of intermediaries in the communication process, who one could claim were, at most, only indirectly liable. (26) The Court took the view that such persons ‘intervene[d], in full knowledge of the consequences of [their] action, to give [their] customers access to a protected work, particularly where, in the absence of that intervention, those customers would not, in principle, be able to enjoy the broadcast work’, which characterises, according to the Court, an ‘act of communication’. (27) Thus, the Court has been able to hold that the managers of various establishments equipped with television sets accessible to the public, (28) persons who post on the internet hyperlinks to content that is not freely accessible, or distribute equipment with such links preinstalled, (29) or indeed persons who manage a content-sharing website which contributes to unlawful acts of communication to the public (30) all make an act of communication.
67. It is necessary, however, to bear in mind the specific nature of the right of communication to the public and the acts which come under that right. A communication to the public requires the presence of two parties: the author of the communication and the public. An intermediary (31) who either facilitates a communication, which would be impossible or extremely difficult without him, her or it, or expands the circle of members of the public with access to the work, thereby making a secondary communication intended for a new public, thus gives a certain public access to protected objects. There is therefore confusion between the respective roles of different actors and an increased risk for the substantial interests of copyright holders. It is in that context, and with a view to guaranteeing rightholders a high level of protection as required by Directive 2001/29, that the Court has accepted the direct liability of such persons in certain situations.
68. In the present case, it is a question not of the right of communication to the public, but of the right to authorise ‘any alteration’ of a computer program, a specific right under Directive 2009/24 which has no counterpart in Directive 2001/29. Acts of alteration – at the very least acts such as those at issue in the main proceedings – do not however provide users with access to the protected work, since those users already have access to it, and lawful access in most cases. Nor do those acts require the presence of two parties, since users carry out the acts in private, in the context of using Sony’s computer programs. There therefore cannot be any intermediary and Datel is not one. The fact that the Datel software at issue is specially designed to operate with Sony’s computer programs and allows users to alter those programs (32) does not change that finding. The roles are clearly assigned and the interests of the holders of the copyright in the computer programs are sufficiently safeguarded, particularly in view of the method of their distribution that is widely used today, namely user licences and contractual provisions which are binding on users. Furthermore, as I have already mentioned, the purpose of Directive 2009/24 is to protect those rightholders not against the manufacture and use of software compatible with their own, but against counterfeiting and piracy.
69. There is therefore no simple analogy between the circumstances of the present case and those analysed by the Court in cases concerning the right of communication to the public. Nor do I believe it is desirable for the Court to attempt to establish such an analogy, the issues relating to the two exclusive rights in question being very different. Thus, in assuming that the Court were to hold that the protection conferred by Directive 2009/24 extends to the content of the variables at issue in this case, it should also, in my view, draw the referring court’s attention to the fact that only the users of software that allows that content to be changed are directly liable for any infringements of copyright in the content and that the manufacturers of that software, such as Datel, can bear only secondary liability which is however not harmonised in EU law and can therefore arise only from national law.
Protection under Directive 2001/29
70. In its observations, the Commission considers it necessary to analyse one aspect which was not raised in the request for a preliminary ruling, namely the possible protection of elements of Sony’s video games other than the computer program itself, such as the graphic, sound, visual and textual elements, or indeed their ‘narrative structure’. (33) The Commission relies on the case-law of the Court according to which video games constitute complex matter, whose elements other than the computer program itself may be protected under Directive 2001/29 (34) and user interfaces of computer programs, in particular, may enjoy such protection. (35)
71. It is certainly an interesting intellectual exercise in which the Commission is thus asking us to engage. I propose however that that aspect not be analysed, for the following reasons.
72. First, the subject matter of the dispute in the main proceedings is limited to an alleged infringement of Sony’s rights under Directive 2009/24, the only act of EU law whose interpretation is sought by the referring court. It is true that the question of whether that subject matter could be expanded to encompass Directive 2001/29 was discussed between the parties at the hearing. The fact remains, however, that all the questions related to the latter directive remain hypothetical and serve no definite purpose for the resolution of the dispute.
73. Secondly, in so far as infringement of the rights based on Directive 2001/29 has not been claimed in the main proceedings, it is not clear to me which elements of Sony’s video games might be concerned or what form any infringement might take. The Commission’s assumptions in that regard are therefore purely hypothetical and have no basis in the claims made and arguments raised in the present case.
74. Thirdly, it is in my view highly likely that, just as in the case of any infringement of the rights based on Directive 2009/24, infringement of those based on Directive 2001/29, in a configuration such as that of the present case, would be attributable to video game users directly and only indirectly to a software manufacturer such as Datel. All the observations which I have presented in points 63 to 69 of this Opinion remain valid.
75. Fourthly and finally, I do not share the Commission’s belief that an infringement of the right of reproduction, which is protected under Article 2(a) of Directive 2001/29, would be committed on account of the use of Datel’s software by lawful acquirers of Sony’s video games.
76. As far as concerns the graphic elements of those games, it is true that they are reproduced on users’ computer screens when the program is running. However, in particular where users are held liable for such reproduction, (36) I see no reason to preclude, as the Commission does, the application to that reproduction of the exception provided for in Article 5(1) of Directive 2001/29. The Court has already held that the reproduction of a work on a screen when receiving television broadcasts in private circles comes under that provision. (37) Just like the reproduction of a television broadcast on a screen, the reproduction of the graphic elements of a video game on a computer screen also fulfils the conditions of Article 5(1) of Directive 2001/29. That reproduction is provisional and transitory in nature, constitutes an integral and essential part of a technical process, has no purpose other than to enable the work to be used lawfully (38) and has no independent economic significance, the lawful acquirer of a video game already having paid the price for acquiring it.
77. As regards, by contrast, the ‘narrative structure’ of a video game, it seems difficult to me even to speak of a ‘reproduction’ in such circumstances. While that structure is perhaps changed by the lawful acquirer of the game during its use, that does not however fall within the exclusive rights of the copyright holder under Directive 2001/29.
78. I therefore propose that the analysis in this case be limited to the interpretation of Directive 2009/24 only.
Conclusion
79. In the light of all the foregoing considerations, I propose that the following answer be given to the questions for a preliminary ruling referred by the Bundesgerichtshof (Federal Court of Justice, Germany):
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 must be interpreted as meaning that
the protection conferred by that directive pursuant to that provision does not extend to the content of the variables which the protected computer program has transferred to the RAM of the computer and uses in running it, in the situation in which another program operating at the same time as the protected computer program changes that content, without however the object code or the source code of the latter program being changed.