To further support the ruling, the CJEU repeated the idea of
Advocate General Bot in that in its view "...allowing that the
functionality of a computer program be protected by copyright would
amount to making it possible to monopolise ideas, to the detriment
of technological process and industrial development". Thus,
the ruling is much in favor of narrow interpretation of copyright,
which limits free competition less.
The decision of the CJEU that the functionality of a computer
program cannot be protected by copyright is not very surprising,
since it repeats the approach previously adopted by the English
courts, in cases such as Navitaire Inc v EasyJet Airline Co Ltd 
and by the Advocate General. On another note, the case was very
complex in many ways, and therefore it seems natural, though
unfortunate, that the judges and parties were to some extent unable
to understand each other. Disappointment in this was also commented
by Lord Justice Lewison, the judge in the Court of Appeal, where he
referred to the ruling of the CJEU. According to Lewiston, the
parties themselves had interpreted the ruling in different ways
and, in addition, he criticized the European Court for not
answering all the questions presented to it. Therefore, my guess is
that this story and discussion will continue in future cases.
So to summarise, according to the Council Directive
91/250/EEC ("the Software Directive") contains the
following recitals: "Whereas, for the avoidance of doubt, it
has to be made clear that only the expression of a computer program
is protected and that ideas and principles which underlie any
element of a program, including those which underlie its
interfaces, are not protected by copyright under this Directive;
Whereas, in accordance with this principle of copyright, to the
extent that logic, algorithms and programming languages comprise
ideas and principles, those ideas and principles are not protected
under this Directive."
Does this mean that programming languge cannot enjoy copyright
protection which was the original system? Is it only relevant in
case of infringement of computer program language by another
computer program language? Can one, say, infringe a copyright in
J.R.R Tolkien's Elf language by writing a book with that
language? Well in light of above it seems that computer programming
languages can enjoy copyright protection, but the scope of such
protection is just often limited by functional elements. So while
in many cases it seems difficult to establish infringement of a
computer program if the other party has utilised functional
elements driven from the underlying programming language, (or the
other way around, infringement of copyright in language by a
computer program) infringement of a copyright in "language
infringes language" -type of claims seems more convincing and
easier to enforce. What is the practical economical rationale
behind such infringing action remains for all of us to consider.
Similarly all of us who have spend some part of their live in
Oxford can breathe a sigh of relieve as Tolkien's work in the
development of Elf language would be protected within this similar
scope with this "no reaping without sowing" kind of
justification elaborated above.
Let me know your thoughts on this and truly fascinating
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