Opinion of Advocate General Szpunar delivered on 25 April 2024.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2024:363
• Date: 25 April 2024
• Celex Number: 62023CC0159
• Court: Court of Justice (European Union)

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...