Advocate General Szpunar (AG) has issued an Opinion in Case C‑159/23: Sony Computer Entertainment Europe Ltd v Datel Design and Development Ltd and others.
The Advocate General has expressed the opinion that Article 1(1) to (3) of Directive 2009/24/EC on the legal protection of computer programs (Software Directive) must be interpreted as meaning that the protection conferred by the Directive 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 German courts had referred the following questions to the CJEU in the context of Sony’s proceedings against Datel, who developed and distributed software and add-on devices to Sony consoles, which allowed the user to use both the console and the games in ways not intended by Sony. Among others, they allowed interference with the gameplay:
- Is there an interference with the protection afforded to a computer program under Article 1(1) to (3) of Directive 2009/24/EC 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 working memory and uses in the running of the program?
- 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 working memory and uses in the running of the program?
The AG said that:
- 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. The data does not exist at the moment that the program is created by its author or when it is loaded into the computer’s memory, as it is only generated while the program is running. Therefore, it does not enable the program, or even a part of it, to be reproduced. The Software Directive only protects computer program code, as it is the code, both the source code and the object code, that enables the program to be reproduced.
- the value of the variables does not satisfy the criterion of originality set out in Article 1(3) in the Software Directive, as it is not the program author’s own intellectual creation. With regards to Sony’s video games, the value of the variables at issue was the result of the progress in the game and, ultimately, the result of the player’s behaviour. The author designed the categories of the variables that are recorded as well as 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 depends on factors which cannot be foreseen in advance, such as the player’s behaviour. Therefore, it cannot enjoy copyright protection.
- 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. In addition, 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, cannot be identified with sufficient objectivity and precision, especially as those changes are determined not by the author’s creation but by external factors, such as the actions of the users of the work.
