ECJ: The functionality of a computer program and the programming language cannot be protected by copyright

News to complete our legal knowledge on the Directive 2009/24/EC . Case law is developing:

According to the Court of Justice of the European Union: The functionality of a computer program and the programming language cannot be protected by copyright.

On the basis of those considerations, the Court holds 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. Accordingly, they do not enjoy copyright protection.


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.


This years DFD was a great success, especially the handcuffs mission.
Even Neelie Kroes, vice President of the European Commission, received a pair of them.[1]

I’d like to highlight the best comment on the issue from Caroline De Cock:

‘Kroes was particularly pleased with her handcuffs’ #girlsjustwannahavefun cc @neeliekroeseu

Already looking forward next years DFD 🙂

[1] See her reaction and articles writing about DFD: The Guardian, Wired UK, PCWorld

IPRED next episode

To creat a framework for the revision of the directive (Directive on the enforcement of intellectual property rights, Directive 2004/48/EC) the Commission issued a Roadmap
The document urges to revise the directive because:
-A number of other issues have been raised, that could be hampering a proper enforcement of intellectual property rights in particular for SMEs, such as:

*the use of provisional and precautionary measures, procedures to gather and preserve evidence (problem of relation between the right of information and protection of privacy)

*the meaning of various corrective measures, including the costs of destruction, the calculation of damages”

-the main problems which this initiative will address are challenges posed by the internet as the original Directive has not been designed to deal with them
To prepare the new directive  a report called Gallo Report‘ was issued:
(-) Disturbing parts
“34.  Draws attention, furthermore, to the growing problem of  *Internet-based industrial espionage* and *theft of data* constituting industrial property, in particular technical documentation and source code;
35.  Proposes that the Observatory should carry out a detailed analysis of the problem of *data theft* and put forward proposals for combating the problem;”
This is not a legally binding document but it will prepare the work of the Commission with its advices.

13.  Calls on the Commission to ensure that the measures aimed at strengthening the application of intellectual property rights in the internal market do not impinge on the legitimate right to interoperability, this being essential to healthy competition on the digital works distribution market, inter alia for the authors and users of free software;

Additional conclusions:

  • directive should only apply to “for-profit infringements”, or acts carried on with “commercial intent”
  • it should not mixes up all kinds of infringements
  • should be i line with the Directive 2009/24/EC on the legal protection of computer programs (decompilation part)
For more information visit:

Unitary patent


Patent law is national in nature. If a business obtains a patent in one
country, it only covers that country. To affect a competing business in
France or Germany, an innovative business must obtain patents in France
and Germany. Until 1978, separate patent applications had to be filed
country by country. When the EPO started in 1978,  a single application
could be filed at the EPO to cover all participating countries. This is
a unified application process and not a unified patent. Once the patent
is granted by the EPO, it splits from a single application into a bundle
of national patents. These must then be validated in each state of

After grant, the various patents then have to be renewed, enforced,
revoked and transferred separately in each country. Where patent
infringement occurs in more than one country, this can mean bringing
court cases in multiple jurisdictions.  

excluded officially by the EPC (article 52 (c)) but the interpretation of the words “as such” have caused a lot of problems and the EPO still issues swapts.

With the relaunch of the unitary patent question there’s another probable way to get through swpats.

        • a draft Patent Regulation for a Unitary European Patent
        • a draft Regulation for the languages regime for the Unitary European Patent
        • a draft Court Agreement
        • ancillary documents for setting up and running the Court

The Unitary European Patent
As Spain and Italy have objected, this proposal currently covers only 25
of the 27 Member States of the European Union (the “Participating Member
States”). = Enhanced Co-operation Procedure

Draft Regulation: when an application filed with the EPO reaches
grant, the applicant can choose(within one month of grant) whether to
convert the 25 patents for the Participating Member States into a
Unitary European Patent.
Any remaining patents which the applicant wants to keep from the bundle
of granted patents will need to be validated nationally within three
months of grant in each of the other countries.

The provisions for the granting and revocation of patents by the EPO are
still set out in EPC the (European Patent Convention). This sets out:
       how the EPO operates
       for what it will grant patents
       how it should do so
       The EPO is not part of the European Union

There are several complications concerning the unitary patent package besides the language question. The ECJ also issued an opinion which said that the Draft Agreement on the Unified Patent Court is not compatible with the EU law.