Citation: 10 Masaryk U. J.L. & Tech. 128 2016
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P. Koukal: Collective AdministrationofGraphicalUserInterfaces ... 128
DOI 10.5817/MUJLT2016-2-1
COLLECTIVE ADMINISTRATION
OF GRAPHICAL USER INTERFACES (GUI)
IN THE LIGHT OF THE BSA DECISION*
by
PAVEL KOUKAL*
In this paperthe authoraddresses the issue of collective administrationofgraphical
user interfaces accordingto the impact of the CJEU decision in BSA v. Ministry
of Culture on the case-law in one of EU Member states (Czech Republic).
The author analyses the decision of the Czech Supreme Court where this Court
concluded that visitors of Internet cafrs use graphical user interface actively,
which represents relevant usage of a copyrighted works within the meaning
ofArt. 18 the Czech Copyright Act. In this paper, attention is first paid
to the definition ofgraphical user interface, its brief history and possible regimes
of intellectual property protection. Subsequently, the authorfocuses on copyright
protection ofgraphical user interfaces in the Czech law and interprets the BSA
decision from the perspective of collective administrationof copyright. Although
the graphical user interfaces are independent objects of the copyright protection,
if they are used while running the computer program the legal regulation
of computer programs has priority. Based on conclusions reachedby the Supreme
Administrative Court of the Czech Republic in the BSA case, the author claims
that collective administration of graphical user interfaces is neither reasonable
nor effective.
KEY WORDS
Graphical User Interface, BSA v. Ministry of Culture, Communication
to the Public, Rental Right, CollectiveAdministration, Computer Program
The publication of this paper is supported by the internal grant of the Masaryk University,
Faculty of Law, called "European Private Law In Time and Space".
pavel.koukal@law.muni.cz, Masaryk Universtity, Faculty of Law, the Czech Republic..
Masaryk UniversityJournalof Law and Technology
1. INTRODUCTION
Graphical user interfaces (hereinafter also referred to as "GUI") can be
found almost everywhere in the 21st century. Due to mobile phones, tablets
and laptops, graphical user interfaces, which are closely associated
with the computer programs and their fundions,' have become an objed
of everyday consumption, especially as far as consumers' usage
of the visual aspeds of eledronic devices is concerned.
The aim of this paper is to provide a brief legal analysis of the copyright
protection2
of GUI referring to the Decision of the CJEU in BSA
v. Ministerstvo kultury (Ministry of Culture) (hereinafter also referred to
as "BSA") and to the current case-law of the Czech Supreme Court
(Nejvy§§i soud). In the first part of this article we will focus
on the development of graphical user interfaces. Then we will continue
with a description of the gradual legal separation of graphical user
interfaces from computer programs and we will try to answer the question
what are the implications of the BSA decision for the colledive
administration of graphical user interfaces. Finally, we will try to defend
the thesis that the legal differentiation between graphical user interfaces
and computer programs cannot lead to the conclusion that the collective
administration of graphical user interfaces is reasonable or effective.
2. THE NOTION OF GRAPHICAL USER INTERFACE
Before starting the analysis of the copyright protection of graphical user
interfaces, it is first necessary to define this notion. The starting point
in defining the notion of GUI is the noun "interface". Stigler defines GUI as a
"computer environment that allows a user to interact with the computer
throughvisual elements such as icons, pull-down menus, pointers, pointing
Samuelson, P. 1989, Why The Look and Feel of Software User Interfaces Should Not Be
Protected by Copyright Law. Communications of the ACM, vol. 32, no. 5., p. 563, 571;
Samuelson, P. Glushko, R.J. 1990, What the User Interface Thinks of the Software Copyright
"Look and Feel" Lawsuits (and What the Law Ought to Do about it). ACM SIGCHI Bulletin,
vol. 22, no. 2, p. 13, 16.
2 The author's original intention was also to analyse the industrial property protection
of GUls, especially the protection of industrial designs. As it turned out, these legal issues
would have probably gone beyond the reasonable scope of this article and would have led
to a dilution of the text. Therefore, the author considers it necessary to focus particularly
on the collective management of rights related to graphical user interface.
The Decision of the CJEU in Bezpeanostni softwarovd asociace - Svaz softwarov ochrany
v. Ministerstvokultury (C-393/09).
129 [Vol. 10:2
2016] P. Koukal: Collective AdministrationofGraphicalUser Interfaces ... 130
devices, buttons, scroll bars, windows, transitionalanimations, and dialog
boxes".
Samuelson goes further to the legal aspects of this term on the basis
of the legal definition of computer programs in the USA,' and defines GUI
as the "non-literal elements of computer programs".6
As a visual phenomenon
GUI might also be defined as
'function-relatedscreens which have in their layout bars with instruction
sequences, menus and windows which lead to further menus or certain
programcontent, such as applicationfiles, graphicsor texts".'
In this sense we will analyze the notion of graphical user interface.
We will consider the graphical user interface primarily as the "look andfeel"
of a computer program.
Different levels of a computer program can be reached through GUI
via a vertical tree or a structure of menus. At the same time, horizontally
positioned displays can be linked together and can open up in tree
structures. These vertical and horizontal sequences form in their respective
totality a coherent "display". In such a visual interface we can also find
4 Stigler, R. 2014, Ooey GUI: The Messy Protection of Graphical User Interfaces. Northwestern
Journalof Technology and IntellectualProperty,vol. 12, no. 3, p. 216.
The US Copyright Code defines "computer program"as "aset ofstatements or instructionsto be
used directly or indirectlyin a computerin orderto bringabout a certainresult" 17 U.S.C. § 101.
6 Samuelson, P. 1991, Computer Programs, User Interfaces, and Section 102(b)
of the Copyright Act of 1976: A Critique of Lotus v. Paperback. Berkeley Technology Law
Journal, vol. 6, no. 2, p. 218 ff., 243. This approach seems to be criticised by Savelka
who suggests to distinguish between the graphical user interface as one of several computer
program interfaces and the "look and feel" of the computer program. Savelka, J. 2012,
Autorskoprdvni ochranafunkcionalitysoftwaru. Rigor6zni price. Masarykova univerzita, Brno
[online], p. 27, 70. Available at:
[Accessed on 3 December 2015].
7 Koch, F. A. 1991 Rechtsschutz foir Benutzeroberflachen von Software. GRUR, no. 3, p. 181.
8 A different approach is taken by Savelka (Savelka, 2012, p. 70). See also note no. 26.
The reason why we are focusing on the GUI as the "look andfeel" of the computer program
is the fad that the CJEU in the BSA decision makes no difference between the ,,look andfeel"
concept and the ,,graphical user interface". The CJEU (BSA, Para. 39-51) has approved
the statement of the Advocate General Yves Bot who argues that ,,at the heart of software
interfaces, Ifind interconnectioninterfaces, which are internalto the software and permit dialogue
with other elements of the computer system, and interactioninterfaces, of which the graphic user
interfaceforms part. The graphicuser interface, commonly referred to as the 'look andfeel', enables
communication between the program and the user. It is in the form, for example, of icons
and symbols visible on the screen, windows or drop-down menus. It makes interaction possible
between the programand the user. That interactioncan consist of the mere provisionof information,
but can also enable the user to give instructionsto the computerprogramusing commands. That is
so, for example, in the case of a file dragged by the mouse and dropped into the recycle bin
or the commands 'copy' and 'paste' in a word processing program" [The opinion of Advocate
General Bot delivered on 14 October 2010, Case C-393/09 (online). Para. 55-56. Available at:
(Accessed on 3 December 2015)].
Masaryk UniversityJournalof Law and Technology
auxiliary functions such as drawings, calendars, docks, calculators, remote
data transfer routines, etc.
It is important to emphasize that GUI covers visual (i.e. non literal)
effects of the functioning of a computer program. On the other hand, GUI
as such contains neither codes (e.g. the source or object code) that stand
in the background nor functional components of the software application.
As an example of GUI we can mention the visual side of computer
operating systems (e.g. Microsoft Windows), "smart phones" operating
systems (e.g. Apple iOS, Windows Phone 8), computer programs that
provide interaction between elements of software and hardware
(e.g. Microsoft Word or Adobe Photoshop), mobile applications
(e.g. Facebook for Android), or television screen menus.9
Graphical user interfaces can be further divided into static (common
graphical user interface which is normally displayed on a computer screen
or tablet) and dynamic ones"o that can be found especially in computer
games. Although in the case of computer games GUI is more dominant
(defacto it represents the "computer based audio-visual work")," the nature
of the interface is the same in both cases: the main function of the graphical
user interface is to enable an interaction between the computer program
and its user.
3. A BRIEF HISTORY OF GUI
The first signs of GUI appeared as early as the 1960s in the project of Doug
Engelbart's augmentation of human intellect at the Stanford Research
9 Stigler, 2014, p. 217.
10 Janssen, Ch., Weisbecker, A., Ziegler, J. 1993, 'Generating User Interfaces from Data Models
and Dialogue Net Specifications' in Proceedingsof the INTERACT '93 and CHI '93 Conference
on Human Factorsin Computing Systems, ACM Press, New York, p. 419.
* See the decision of the United States Court of Appeals (Second Circuit) in Stern Electronics,
Inc. v. HaroldKaufman d/bla Bay Coin, et al. [online]. Available at: [Accessed on 5 December 2015];
The Decision of the Federal Court of Australia in Sega Enterprises v. Galaxy Electronics
[online]. Available at: [Accessed on 7 December 2015].
The Decision of the German OHG Hamburg from 31 March 1983, File No. 3 U 192/82
("Puckman") [online]. Available at: [Accessed on 7 December
2015].
See also Loewenheim, U. 1989, Legal Protection for Computer Programs in West Germany.
Berkeley Technology Law Journal, vol. 4, no. 2. p. 187; Pilarski, J.H. 1987, User Interfaces and
the Idea-Expression Dichotomy, Or, Are the Copyright Laws User Friendly. AIPLA
QuarterlyJournal,vol. 15, no. 4, p. 325; Stamatoudi, I. A. 2001. Are Sophisticated Multimedia
Works Comparable to Video Games Part II. Journalof the CopyrightSociety of the U.S.A., vol.
48, no. 3, p. 482.
131 [Vol. 10:2
2016] P. Koukal: Collective AdministrationofGraphicalUserInterfaces ... 132
Institute (SRI). This project was called "On-Line System (NLS)"
and contained hardware devices and the basic structure of GUI software.
Until the 1970s, the computer was not anything but a huge calculator.
However, since then a major technological achievement have occurred:
the transition of the interface from command lines (based
on the communication with the device through various written commands)
to a graphical interface made computers available to the general public.
Doug Engelbart's results helped the Xerox company to develop
a program in the Xerox Palo Alto Research Center (PARC) which formed
the basis of GUI. At that time the company mainly dealt with photocopying
and feared bankruptcy due to a greater use of computers and related
tendency to read those documents only while using a computer.
The company thus invested considerable amounts of money
into technological development which was supposed to replace "real" paper
by the "virtual" one." In 1973, PARC developed the very first personal
computer called Alto that demonstrated GUI, enabling the user to "see"
what is happening in the computer by entering a command (the so called
WYSIWYG system).14
GUI transformed the traditional, physical desktop
into a virtual desktop which enabled the end user of the computer program
to use effectively the main functions of the software. The primary tools
of the GUI operation mode are in particular PARC buttons, icons,
and windows or menus which are operated by the mouse, fingers
(with the combination of the touchscreen technology), or, in a limited way,
by the keyboard. By clicking or touching these visual elements GUI starts
the command functions of the computer program (e.g. opening, deleting,
or removing files, installing programs, etc.)
The Alto computer was not a real commercial product since the XEROX
company used this item mainly for internal purposes. However, the GUI
from PARC subsequently became an inspiration for creating the first
commercially successful GUI developed by the Apple Computer in the form
of a computer called the Apple Macintosh." The screen of this computer
12 Saffer, D. 2010, Designingfor Interaction, Second Edition: Creating Innovative Applications
and Devices. New Riders, Berkeley, p. 12.
13 Engelbart, D., Lehtman, H. 1988, Working Together: The "Human System" and the "Tool
system" [online], p. 245. Saffer, 2010, p. 213. Stigler, 2014, p. 219. Available at:
[Accessed on 3 December 2015].
1 Engelbart/Lehtman, 1988, p. 246.
1s Saffer, 2010, p. 13.
Masaryk UniversityJournalof Law and Technology
included the famous "dustbin", overlapping strips (windows) and file
16
components.
Since then GUI has extended well beyond computer operating systems
and can be found in "smartphones", tablets, cars, etc. The main advantage
of GUI lies primarily in its intuitiveness, because it helps end users
communicate with the computer using a visual language. GUI's flexible
dictionary is based on a simple set of actions with the mouse and intuitive
operations (dick, double dick, click and move, deleting a file by removal
to the "recycled bin", etc.) In principle, the user is using the keyboard only
in a limited way (particularly for data input), but not for specific commands
which are used in order to perform the program functions.
The legal protection of GUI includes copyright protection and protection
of registered or unregistered sui generis regimes of protection.'" In the US
jurisdiction, we can find copyright protection, protection provided by trade
secrets or design patents. 9
In the EU, graphical user interfaces are also
protected by copyright law and industrial property protection which covers
registered and unregistered designs.20
These regimes of protection may
overlap one another21
and each of them has its advantages
and disadvantages. The optimal form of protection may then depend
on their combinations.
4. COPYRIGHT PROTECTION OF GUI IN THE CZECH
REPUBLIC
The Czech Republic is known in the field of IP protection especially due to
the protection of industrial property concerning geographical indications
16 Reimer, J. 2005. A History of the GUI [online], p. 10. Available at: [Accessed on 3 December 2015].
17 Other GUIs which entered the computer market during the 1980s were VisiOn (a product
of the VisiCorp) and Windows 1.0 (a product of the Microsoft Corp.). Reimer, 2005, p. 12.
See also Terry, P.M. 1994. GUI Wars: The Windows Litigation and the Continuing Decline
of "Look andFeel". Arkansas Law Review, vol. 47, no. 1, p. 117 ff.
18 Stigler, 2014, p. 227 ff.
19 Dinwoodie, G., B., Janis M.D. 2010. TradeDressand Design Law. Wolters Kluwer, New York,
p. 14-24, 41 ff.; Terry, 1994, p. 93 ff.; Rolling, J.M. 1998. No Protection, No Progress
for Graphical User Interfaces. MarquetteIntellectualPropertyLaw Review, vol. 2, no. 1, p. 157.
20 Eichmann, H., Falckenstein, R.V. 2010. Geschmacksmustergesetz, kommentar. C.H.Beck,
Mfinchen. p. 52, 78, 80; Suthersanen, U. 2010. Design Law: European Union and United States
of America. 2nd edition. Sweet&Maxwell, London, p. 87 ff. Howe, M. 2010, Russel-Clarke
andHowe on IndustrialDesigns. 8th edition. Sweet&Maxwell, London, p. 32 ff., 267.
21 Dereclaye, E., Leistner, M. 2011. Intellectual Property Overlaps, European Perspective.
Hart Publishing, Oxford, p. 7, 32 ff.
2 Stigler, 2014, p. 246.
133 [Vol. 10:2
2016] P. Koukal: Collective AdministrationofGraphicalUserInterfaces ... 134
and trademarks in disputes between Budejovicky Budvar NP and Anheuser
Busch. In the field of copyright protection the Czech contribution
to the definition of copyrighted objects and the "originality" criterion is
based on the findings of the CJEU in the dispute between BSA
and the Ministry of Culture. This case has become widely known 24
, even
though the copyright protection of graphical user interfaces was not
an issue of special interest in the Czech legal literature on copyright
or in the court practice.
However, the BSA decision had significant implications for the decision
of the Supreme Court (Nejvyi soud) in the case of OOA-S v. P.F.26
which
2 Groves, P.J. 1997, Sourcebook on Intellectual Property Law. Cavendish Publishing Limited,
London, p. 704; Smith, J. 1999. Budweiser or Budweiser? John Marshall Law Review, vol. 32,
no. 4. p. 1251. Muchlinsky, P.T. 1996. A Case of Czech Beer: Competition
and Competitiveness in the Transitional Economies. The Modern Law Review, vol. 59, no. 5,
p. 658 ff.
24 Polanski, P.P. 2013, Some Reflections on the Duality of Regime for Software Protection
in the European Union. Computer Law & Security Review, vol. 29, no. 3, p. 284; Griffiths, J.
2013.,Dematerialization, Pragmatism and the European Copyright Revolution. Oxford
Journalof Legal Studies, vol. 33, no. 4, p. 780; Kur, A., Dreier, T. 2013. European Intellectual
PropertyLaw, Edward Elgar, Cheltenham, UK, Northampton, MA, USA, p. 292, 293; Rosati,
E. 2010. Originality in a Work, or a Work of Originality: The Effects of the Infopaq Decision.
Journal of the Copyright Society of the U.S.A., vol. 58, no. 4, p. 810 ff; Derclaye, E. 2014,
Assessing the Impact andReception of the Court of Justiceof the European Union Case Law on UK
CopyrightLaw: What Does the FutureHold? [online], p. 7, 25. Available at:
[Accessed on 3 December 2015]
2' The most relevant commentary on the Czech copyright law deals with the issue
of the copyright protection of graphical user interfaces only very briefly: "Visual and audiovisual
expressions which areperceivableon the computer screen ('look andfeel') may meet the legal
definition of a copyrighted work and they are different objects of protection than computer
programs... These different creations can be objectively perceived as artistic works, in concreto
as works offine art oraudiovisual works. However, the assessmentof their non-legalnature exceeds
more or less the interpretationof the Copyright Act. Related legal conclusions can be similar also
for computer games expressed through computer multimedia technology. Computergames as such
can be considered also as audio-visualworks within the meaning ofArt. 62 of the Czech Copyright
Act, and thus be a separatesubject to copyright protection". Telec, I., Tima, P. 2007. Autorsky
zdkon, komentdr. C.H.Beck, Praha, p. 40. The copyright protection of GUI was later analyzed
also by Savelka who is of the opinion that there is an essential difference between the GUI
as an element of the computer program and GUI as the visual outcome of the software
product: "As time went the academics started to use for the designation of the notion in question
two words - 'Look & Feel' and 'graphicaluser interface'. Although these terms are often used
inaccurately their usage indicates what the nature of the problem is. There is a fundamental
difference if some authors speak about the 'Look & Feel', which is regarded to be an expression
concerning the externalappearanceof the software productand how the productappearsisperceived
by the user, and if others speak about 'graphicaluser interface'. This notion indicates a specific
interface, which is included in the software among other interfaces (interfacefor communication
with other applications,operation system, etc.) This interface is included in the software product,
however, the action ofthe softwareisforming 'Look &Feel'". Savelka, 2012, p.70, 71.
26 The Decision of the Supreme Court of the Czech Republic from 25th March 2015, No. 30
Cdo 5008/2014 [online]. Available at: [Accessed on 3 December
2015]. Ochranni organizace autorski - sdruleni autor del vytvarndho umini, architektury
a obrazov sloiky audiovizuilnich del, z.s. (hereinafter referred to as "OOA-S") is one
of the collecting societies operating in the Czech Republic. OOA-S collectively manages
rights of graphic designers, cinematographers, architects, painters and sculptors [online].
Available at: .
Masaryk UniversityJournalof Law and Technology
brought to the Czech copyright practice various questions concerning
the collective management of graphical user interfaces.
5. BSA DECISION AND COLLECTIVE MANAGEMENT
OF COMPUTER PROGRAMS
Each case which is submitted for an answer to a preliminary question
by the Court of Justice of the European Union has its own national history.
The official version of the legal dispute between BSA and the Ministry
of Culture of the Czech Republic (Ministerstvokultury) was briefly described
in the reasoning to the Court's decision (BSA, Para. 15-22)
and in the opinion of the Advocate General (Opinion of Advocate General
Yves Bot,27
Para. 24-28,) and was generally discussed in many scholarly
papers.
However, it is necessary to point out that the real legal problem
in the BSA case was neither whether graphical user interfaces are
independent objects of copyright protection, nor whether their television
broadcasting constitutes communication to the public within the meaning
of Art. 18 of the Czech Copyright Ad 29
(Art. 3 of the InfoSoc Directiveo),
but if the collective management of computer programs is reasonable
and effective.
The Czech Copyright Act distinguishes compulsory collective
management (Art. 96 of the Czech Copyright Act), under which certain
rights must be managed by the collecting societies ex lege (Ministry
of Culture is obliged to grant such authorization for collective management)
and voluntary collective management (Art. 98 of the Czech Copyright Act)"
where the authorization for the collective management in relation to specific
objects of protection is at the discretion of the Ministry of Culture.12
27 See fn. no. 9 above.
2 Savelka, 2012, p. 84 ff.; Griffiths, 2013, p. 16, 24; Rosati, 2011, p. 811, 812 Derclaye, 2014, p. 6,
8.; Guarda, P. 2013. Looking for a Feasible Form of Software Protection: Copyright
or Patent, is that the Question? EuropeanIntellectualPropertyReview, vol. 35, no. 8, p. 447.
29 Law No. 121/2000 Coll. of 7 April 2000 on Copyright, Rights Related to Copyright
and on the Amendment of Certain Laws (Copyright Act), as amended [online]. The English
translation available at: [Accessed
on 3 December 2015].
* The Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001
on the harmonisation of certain aspects of copyright and related rights in the information
society. [online]. Available at: [Accessed on 3 December 2015].
31 Salamoun, M. 2004. Kolektivni spriva - formace a deformace autorskO ville. Prdvni rozhledy,
vol. 7, no. 6, p. 208 ff.
135 [Vol. 10:2
2016] P. Koukal: Collective AdministrationofGraphicalUserInterfaces ... 136
In the BSA case the CJEU answered the question whether computer
programs can be used in television and cable broadcasting (BSA, Para. 52,
57). However, under normal circumstances [i.e. without the statutory
definition of collective administration (Art. 96 and 98 of the Czech
Copyright Act)] such a question would have never arisen since a reasonable
person would probably had never thought that citizens could be interested
in "watching computer programs" on their TV sets instead of watching
popular soap operas or football matches. But due to the legal definition
of compulsory collective management" and the broad interpretation
of voluntary collective management, which was sought by the applicant,3 4
the complex administrative and judicial proceedings had to be conducted
by the Czech public and court authorities. Although these proceedings
ended up with the refusal of the application, 5
a larger number of various
legal problems arose.
Instead of considering the very core of the dispute which had nothing
in common with the EU law (the definition of the scope of collective
administration has not been harmonized even after the adoption
of the Directive on collective management of copyright and neighboring
3 This issue was the main subject matter of the administrative proceedings held before
the Ministry of Culture and of the judicial review of the Supreme Administrative Court
(Nejvy§§i sprdvni soud) [Decision of the Supreme Administrative Court from 2nd February
2011, No. 5 As 38/2008 (online). Para. 7, 16, 27, 75, 76. Available at:
[Accessed on 3 December 2015], as the applicant (BSA) sought authorization not
only for the compulsorily collectively administered rights but also for the voluntarily
collectively administered rights, in particular the rights to broadcast computer programs
and to expose them to the public.
Among the compulsory collectively administered rights is e.g. the right to remuneration
for the use of works by cable retransmission (Art. 96, Para. Ic, the Czech Copyright Act).
Originally, the application was filed by the consortium ZASTUDENA.CZ, and later,
by its legal successor Bezpeanostni softwarovd asociace - Svaz softwarov ochrany (transl.
Business Software Association - Union of Software Protection). Both applicants tried
to apply an extensive interpretation of the communication to the public (Art. 18 ff.
of the Czech Copyright Act) and the exposure (Art. 17 of the Czech Copyright Act)
of computer programs [see Decision of the Supreme Administrative Court No. 5 As 38/2008,
Para. 2].
3 The Supreme Administrative Court of the Czech Republic, referring to the CJEU
preliminary rulings, upheld the decision of the Ministry of Culture which had previously
rejected the BSA application for authorization to exercise the collective management
of computer programs (Decision of the Supreme Administrative Court No. 5 As 38/2008,
Para. 3, 4, 6, 77).
Masaryk UniversityJournalof Law and Technology
rights)36
the judges of the Supreme Administrative Court decided to "ask
for help" from the CJEU..
In this context it must be noted that the Supreme Administrative Court
did not need to obtain an answer from the CJEU in order to decide that
administrative dispute. If someone reads the decision of the Supreme
Administrative Court carefully, the key legal arguments can be found
in Para. 75 and 76, in which the Court deals with the effectiveness
and reasonability of collective administration of rights related to computer
programs.
It is useful to point out the decision of the Supreme Administrative
Court that the applicant sought an authorization for collective
administration only in relation to computer programs, not in "other objects
arising in connection with the developing of the software" (Decision
of the Supreme Administrative Court No. 5 As 38/2008, Para. 68).
The Supreme Administrative Court thus had to be aware of the possibility
that in the future it would be necessary to address the question
of effectiveness of collective management in relation to the graphical user
interfaces as "separateobjects ofprotection".
The Czech legal practice had to deal with this issue quite soon,
since the collective society OOA-S (see further, fn. no. 46, 47) began to apply
the collective administration of rights to graphical user interfaces
immediately after the BSA decision had been issued. The legal question
which was necessary to consider was:
"How the copyright law is to deal with this new object of protection
from the perspectiveof the collective administration?"
6 Directive 2014/26/EU on collective management of copyright and related rights and multiterritorial
licensing of rights in musical works for online use in the internal market [online].
Available at:
[Accessed on 3 December 2015].
3 The Supreme Administrative Court decided to refer two preliminary questions to the CJEU:
"I. Should Article 1(2) of [Directive 91/2501 be interpreted as meaning that, for the purposes
ofthe copyright protection of a computer program as a work under that directive, the phrase
'the expression in any form of a computer program' also includes the graphic user interface
ofthe computer programor part thereof? 2. Ifthe answer to the first question is in the affirmative,
does television broadcasting,whereby the public is enabled to have sensory perceptionof the graphic
user interface of a computer program or part thereof, albeit without the possibility of actively
exercisingcontrol over that program, constitutemaking awork orpart thereofavailableto the public
within the meaningofArticle 3() of [Directive2001/291? " (BSA, Para. 21).
For the interpretation of these preliminary questions see also Rosati, 2011, p. 811; Savelka,
2012, p. 85.
137 [Vol. 10:2
2016] P. Koukal: Collective AdministrationofGraphicalUserInterfaces ... 138
From the text of the BSA decision we only know that GUI cannot be
communicated to the public through television broadcasting (BSA, Para. 57)
and that certain elements of that object are not subject to copyright
protection if they are determined by their technical function (BSA, Para. 49
and 50)."
However, for the answer about the possible collective administration
of graphical user interfaces it should be pointed out the CJEU findings that
graphical user interfaces per se can fulfil their main function, which is
"to enable communication between the computer program and the user"
(BSA, Para. 40).
In other words, although the computer program is objectively
perceivable only in source or object codes (BSA, Para. 34),
the communication interface (GUI), which according to the CJEU may be
protected as a separate copyrighted work,3 9
has one main purpose: to allow
the end user to use functions of the computer program. Instead of typing
commands onto the command line the user clicks on the software icon
on the monitor screen.
Furthermore, CJEU explains that graphical user interface is
"one element of that program by means of which users make use
of thefeatures of that program"(BSA, Para. 41).40
For these reasons it makes little sense to consider the collective
management of rights related to graphical user interfaces, because the key
function of graphical user interface may be performed only while running
the computer program (see argumentation below).
6. CRITICAL REMARKS ON THE DECISION OF THE
CZECH SUPREME COURT IN THE CASE OOA-S V. P.F.
The Czech collecting society OOA-S has the authorization to perform
collective administration in relation to works of fine art and works
38 For an interpretation of the BSA decision in relation to the requirements of originality
of copyrighted works, see Rosati, 2011, p. 812; Derclaye, 2014, p. 8.
39 Similarly Telec/Tima, 2007, p. 40. Concerning the level of originality, see Rosati, 2011,
p. 798, 813; Griffiths, 2013, p. 19; Derclaye, 2014, p. 8; Husovec, M. 2012. Judikat6rna
harmonizdcia pojmu autorskdho diela v uninom prave. Bulletin slovenskej advokdcie, No. 12.
p. 16 ff.
* See also the Opinion of Advocate General Yves Bot, fn. no. 9, Para. 65.
Masaryk UniversityJournalof Law and Technology
of applied art. This collecting society is authorized 41
to manage compulsory
administered rights to using the works by cable retransmission (Art. 96,
Para. 1c of the Czech Copyright Act) and is also entitled to enforce the right
to adequate remuneration for the rental of the original piece of work
or copies of works which are fixed in audio-visual recordings (Art. 96,
Para. lb of the Czech Copyright Act; hereinafter also referred to as "rental
right").
Although the OOA-S has not been expressly granted an authorization
to manage rights to graphical user interfaces, 42
it began to pursue monetary
daims against operators of Internet cafis. OOA-S argued that graphical user
interfaces belong to the category of works of fine art43
and that rights related
to these objects of copyright protection are administered by this collecting
society.
The OOA-S argued that graphical user interfaces of computer (video)
games meet the definition of audio-visual recordings (Art. 79, Para. 1,
the Czech Copyright Act)' and thus they are to be considered as "works that
are recorded as audio-visual recordings" in accordance with Art. 96, Para. lb,
the Czech Copyright Ad. 45
Furthermore, visitors to Internet cafis use
graphical user interfaces actively (i.e. through the GUI they are utilizing
functions of a computer program; BSA, Para. 40-41). Such a use may
constitute the communication of copyrighted works and audio-visual
recordings to the public in the sense of the Art. 18 of the Czech Copyright
Act (Art. 3, Para. 1, the InfoSoc Directive) and the rental of such protected
objects (Art. 15 of the Czech Copyright Act; Art. 2 Para. 1.a, the Rental
1 The authorization is based on the Decision of the Ministry of Culture from 5th August 2009,
No. 2797/2009 [online]. Available at: [Accessed on 3 December 2015].
2 An authorization granted by the Ministry of Culture includes the collective administration
of rights related to "works of fine art such as paintings, graphic and sculptural works,
photographicworks and works expressed by a process analogous to photography, works of applied
art, works utilized audio-visually such as works of cameramen, stage and costume designers,
andarchitecturalworks, including urban works", Decision of the Ministry of Culture from 5th
August 2009, No. 2797/2009, Ibid.
See Telec/Tima, 2007, p. 40. Similarly Koch, A. F. 2010 'Webseiten und Websites
als Erstellungsprodukte' in Loewenheim, U. Handbuch des Urheberrechts. C.H.Beck,
Mfinchen. p. 1963.
4 "Audio-visualfixation is thefixation of an audio-visual work or afixation of anotherseries offixed
and connected images evoking the impression of movement, both accompaniedby sound and mute,
perceivable by sight and, if accompanied by sound, perceivablealso by hearing" (Art. 79, Para. 1,
the Czech Copyright Act).
4 The rental right is a compulsorily administered right: "Rights subject to mandatory collective
administration are the following [...] the right to the appropriate remunerationfor the rental
ofthe original or a copy of the work, or of a performanceby a performerfixed in an audio or audiovisualfixation"
(Art. 96, Para. 1b, the Czech Copyright Act).
139 [Vol. 10:2
2016] P. Koukal: Collective AdministrationofGraphicalUser Interfaces ... 140
and Lending Directive4 6
) as well. For these reasons, operators of Internet
cafis should pay an equitable remuneration for the "rental of GUIs recorded
on audio-visual recordings", because the protected object is recorded
on the hard drive of the computer which is connected to the Internet.
The Regional Court in Pilsen (Krajsky soud v Plzni) dismissed the action
of OOA-S which sought an injunctive relief and payment of 15,200 CZK
(560 EUR) against P.F., the operator of an Internet caf6. The Regional Court
held that graphical user interfaces are only an element of a computer
program (BSA, Para. 41) and not audio-visual recordings in the sense
of the Art. 79, Para. 1, the Czech Copyright Act. For this reason the plaintiff
is not entitled to pursue such daims against the defendant [i.e. the OOA-S
has no locus standi (active legitimation)].
The High Court in Prague (Vrchni soud v Praze) upheld the decision
of the Regional Court. Unlike the first instance court this Court decided that
graphical user interfaces are considered a copyrighted subject matter,
but in Internet cafis people just passively use GUI and their needs are not
satisfied by the GUI itself but by the computer program for the use of which
potential customers probably come to Internet cafis. The main purpose
of the GUI is then just to disclose the function of the computer program
to the potential user.
Judges of the High Court quoted findings contained in the BSA decision
that the graphical user interface cannot be effectively used by the television
broadcasting. According to the conclusions of the High Court it is hardly
possible to speak about the effective use of the GUI in an Internet caf6,
and therefore the OOA-S cannot pursue the rental right pursuant to Art. 96,
Para. lb, the Czech Copyright Ad.
In its appeal addressed to the Supreme Court (Nejvy§§i soud), the plaintiff
argued that (i) graphical user interfaces are independent objects
of copyright protection, (ii) the OOA-S has the authorization to exercise
the collective administration of the rental right, and therefore (iii) it is
entitled to pursue daims against a defendant for an adequate compensation
if the defendant provides ("rents") the graphical user interface to the public.
In relation to the graphical user interfaces the same principle should be
applied as to video rentals or public libraries. These institutions also pay
6 The Directive 2006/115/EC of the European Parliament and of the Council of 12 December
2006 on rental right and lending right and on certain rights related to copyright in the field
of intellectual property (codified version) [online]. Available at: [Accessed on 7 December 2015].
Masaryk UniversityJournalof Law and Technology
an adequate remuneration to the collecting society for the renting of films
and other audio-visual works. The OOA-S has opposed the interpretation
of the BSA judgment provided by the High Court and emphasized that
in the given case the graphical user interfaces were used in an active way.
The Czech Supreme Court annulled the judgment of the High Court
and noted that the CJEU in the BSA decision had held that the reason
why the graphical user interface could not be used in the form of television
broadcasting was that the GUI was communicated to potential viewers only
in a passive way without having a chance to intervene (TV viewers thus
cannot benefit from the main function of the interface, which is to enable
an interaction between the computer program and the user). Given that
such use of the GUI does not constitute the communication of the GUI
to the public in the sense of Art. 3, Para. 1, the InfoSoc Directive.
In the given case, however, the Prague High Court had overlooked the fact
that when the visitors to an Internet caf6 interact with the GUI in order
to achieve the desired functions of the computer program, such use
constitutes the communication to the public within the meaning
of the Art. 18 of the Czech Copyright Act. With the use of the argument
a contrario, no other interpretation is possible. The Supreme Court stated
that in the context of the given case it is not possible to speak about passive
use of the GUI by visitors of an Internet caf6.
The author of this paper is of the opinion that the Supreme Court
decision in the OOA-S case is problematic for several reasons. Graphical
user interfaces, although being able to represent separate objects
of copyright protection (BSA, Para. 51) in the sense of the InfoSoc Directive
(or Art. 2, Para. 1, the Czech Copyright Act), form an element of a computer
program (BSA, Para. 41) whose main purpose is to allow the interaction
between the user and the computer program (BSA, Para. 40). Although GUI
as such can be used separately (e.g. in a printed form in computer games
magazines), its main function is satisfied in conjunction with the computer
program.
The first problematic issue in the reasoning of the Supreme Court is that
it did not decide on the issue of locus standi (active legitimation),
even though this was the crucial point in the given legal dispute.
As the Supreme Administrative Court decided that the collective
administration of computer programs is neither reasonable nor effective
7471 [Vol. 10:2
2016] P. Koukal: Collective AdministrationofGraphicalUserInterfaces ... 142
(5 As 38/2008 Decision, Para. 75, 76)4, and as the OOA-S does not have
an express authorization provided by the Ministry of Culture to perform
collective administration of rights related to graphical user interfaces,
the OOA-S cannot have locus standi to enforce those rights.
An authorization to exercise the collective administration must be
interpreted restrictively, since it is the state (a public authority) that must
explicitly enable the collective management of certain objects of protection.
The extensive interpretation, which is based on the classification
of the graphical user interface as works of fine art, should be found
as an excessive one.
The second problem 48
is that the CJEU had specifically dealt, in the BSA
decision, only with the issue whether the GUI might be used in the form
of communication to the public (TV broadcasting). The Supreme Court,
however, on the basis of an argument a contrariodecided that the active use
of GUI probably represents a "rental of copies of a copyrighted work".
Such a conclusion, however, is not substantiated neither by any provision
of the Czech Copyright Act nor by provisions of the Rental and Lending
Directive. 49 The right to remuneration from rental right has always been
associated just with material carriers5
o of copyrighted works (i.e. the original
work or a physical copy of the work).1
Making works available
to the public on-line has always been considered to be a communication
of the work to the public, even though the members of the public paid
directly a fee to the right holder. "Renting of works on-demand"
on the Internet is not considered as renting in the sense of the Art. 1, Para. 1,
and Art. 2, Para. la, the Rental and Lending Directive.
4 Similarly Telec/Tima, 2007, p. 751. Towards a rationale of collective management
in general, see also Fiscor, M., CollectiveManagement of Copyright and Related Rights [online],
p. 16-18. Available at: [Accessed on 5 December 2015].
4 For this comment I would like to express my gratitude to my colleague Matij Myika
who pointed out this loophole in the argumentation of the Czech Supreme Court.
An explicit exclusion of computer programs from collective management of rental right is
stipulated e.g. in Art. 63, Para. 5, the Latvian Copyright Act (Autortiesibu likums) [online].
Available at: [Accessed on 5 December 2015].
50 Telec/Tima, 2007, p. 208. Loewenheim, 2010, p. 311.
" However, the ECJ has not decided on this issue yet. In the Technische UniversitiltDarmstadt
v. Eugen Ulmer KG (C-117/13; Para. 35) the CJEU explicitly dealt only with the licensing
of copyrighted works. The preliminary ruling concerning the question if the rental right
relates also to e-books is still pending (Referral C-174/15 from the 17 April 2015; Vereniging
OpenbareBibliotheken [online]. Available at: [Accessed on 5 December 2015].
Masaryk UniversityJournalof Law and Technology
The third problem concerns the question of reasonability
and effediveness of the colledive administration of graphical user
interfaces. As has been stated above, the main function of the GUI is
fulfilled only while running the computer program. In this respect we have
to consider the finding of the CJEU that the GUI
"merely constitutes one element of that program by means of which users
make use of thefeatures of that program"(BSA, Para. 41).
Then, if the Supreme Administrative Court held that the collective
administration of computer programs was ineffective, these findings must
also apply to potential colledive administration of the graphical user
interfaces. The legal regime of computer programs seems to be dominant
in the determining of the colledive administration of all copyrighted objeds
which are created within the process of the software development.
For this reason, not only the rental right but also other compulsory
administered rights, such as right to remuneration for making copies
of a work for personal use, may hardly be colledively administered.
To sum up, we can state that the decision of the Supreme Court
in OOA-S v. P.F. is incorred in many aspects. Not because the Supreme
Court judges using the argument a contrario found that in Internet cafis
the graphical user interfaces were used actively (which is obvious
and in this aspect the decision of the High Court in Prague was wrong),
but because they paid no attention to the prevailing legal regulation
of computer programs when assessing the possibility of collective
administration of graphical user interfaces. The appeal of the OOA-S should
have been rejected since the OOA-S had no locus standi (active legitimation)
to daim monetary compensation for the use of graphical user interfaces
in the Internet caf6 of the defendant.
2 Similarly "the rental of the original or a copy of the work shall mean making the work available
in a physical form for the purpose of direct or indirect economic or commercial advantage
by providingthe originalor a copy of the work for a limitedperiod of timefor personaluse" (Art. 15,
the Czech Copyright Act).
"The making of a reproductionfor personal use on the basis of a graphicexpression by its transfer
by means of a technical device for making printed reproductions to another material support,
and that also through the facilitationof a third party" (Art. 96, Para. la, Section 4, the Czech
Copyright Act). In this context it should be noted that computer programs cannot be legally
copied for personal use (Art. 30, Para. 3, the Czech Copyright Act), with the exception
of a back-up copy [Section 66, Para. Ic, the Czech Copyright Act]. If it is legally impossible
to make a copy of a computer program for personal use, it is not permissible to collect
the remuneration from blank media carriers, either (Art. 25, Para. 1b, the Czech Copyright
Act), and this conclusion also applies to graphical user interfaces.
143 [Vol. 10:2
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7. CONCLUSION
We have tried to show the impact of the BSA decision on the case-law
of the Supreme Court in one member state of the EU (Czech Republic)
and to point out the possible misinterpretation of the BSA decision.
The reasoning of the Czech Supreme Court in the OOA-S decision leads
to an absurd conclusion that even though the collective administration
of computer programs is neither reasonable nor effective the independent
collective administration of GUIs is permissible, and this is substantiated
by an a contrariointerpretation of the Para. 57 of the BSA decision.
Graphical user interfaces, when assessing their main function, serve
to an easier operation of a computer program by the end user. For this
reason, it makes no legal sense to consider the separate collective
management of GUIs. In contrast to the findings of the Czech Supreme
Court the author of this paper concludes that when legally assessing the
possible collective administration of graphical user interfaces the legal
regulation of computer programs has priority. If the Supreme
Administrative Court in the BSA case held that the collective administration
of computer programs was neither reasonable nor effective, the same
conclusion should have been applied on the collective management
of graphical user interfaces.
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