The European Court of Justice (ECJ) today published its judgment on the scope of software copyright protection (Case C-159/23 – Sony Computer Entertainment Europe) in response to a referral from the Federal Court of Justice (Bundesgerichtshof - BGH). The ECJ has ruled that the maker of a computer programme cannot prohibit a third party from distributing software that only modifies the content of variables that are temporarily stored in the memory of a computer.
GvW is representing the Datel Group, an English group of companies which develops and distributes add-on software and products for game consoles. The group was sued by a game console manufacturer for infringement of copyrights in game software. The add-on software only modified individual numerical values stored by the game software in the working memory of the game console during the parallel running of the game software, and not the source code. This modification altered the gameplay.
The judgment concerns a fundamental decision on the permissibility of certain forms of interoperability and software modification. Regardless of this, the comprehensive protection of (gaming) software and its protectable components, for example under other copyright provisions or competition law, remains fully intact. This also protects the added value and innovation of software manufacturers and games publishers. In particular, the ECJ clearly defined the difference between modifications that only affect temporary values in the main memory and those that intervene in the source code. This means that substantial interventions in the source and object code of software will continue to enjoy comprehensive protection.
The judgment thus not only creates legal certainty in the interaction of various software applications, but also confirms the importance of copyright protection for game software as a central innovation driver in the games industry.
GvW represented Datel Group through Dr. Christian Triebe and Dr. Walter Scheuerl (both IP, Hamburg).
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