5 key takeaways on the protection of software under EU copyright law

In case C-159/23 (Sony v. Datel) of 17 October 2024, the Court of Justice of the European Union (CJEU) ruled that "cheating" software, which modifies in-game variables in a game software protected by copyright, without altering the source or object code of the protected software, does not infringe copyright on computer programs under Directive (EU) 2009/24.

1. Key lesson

While the cheating software altered variable data stored in the game’s RAM, the Court ruled that such variable data is not protected by copyright law, and the cheating software does not constitute copyright infringement.

More generally, it now appears clear that data loaded into the working memory or RAM of a computer program is not protected. Add-ons (such as ad-blocking plugins or other software-enhancing tools) that do not make changes to the source code itself, but rather to data in RAM or cache memory, should be considered authorised during the runtime of the software.

1. Impact on the IT industry

This decision sets an important precedent for software that interacts with, but does not replicate or modify, the internal structure of protected programs. Under copyright law, this type of software can operate freely.
This clarification could have significant implications for the IT industry, as it may foster innovation and investment in software "enhancements" while potentially discouraging rights holders from enforcement efforts.

1. What is protected? Elements that allow the program to be reproduced or subsequently created

The ruling invites closer examination of what is protected by EU copyright law on computer programs. The “expression in any form of a computer program” is protected, provided that the program is original in the sense that it is the author’s own intellectual creation. The concept of “expression in any form” refers to the elements that allow the program to be reproduced or subsequently created.

1. What are the “expressions in any form”?

The source code and the object code, which refer to a set of instructions meant to perform a particular function or task on a computer, fall within this concept. Simply put, the source code is written in a programming language readable by humans, while the object code, which is produced from the source code through the ‘compilation’ process, is the form of the program readable by the computer. In trade, programs are normally distributed solely in the form of object code. The concept also includes preparatory design work if it enables the program to be created at a later stage.

1. Other protection regimes might apply

The ruling invites caution, as even in cases where copyright protection for a computer program does not apply, some elements might still be protected by other regimes, such as unfair competition, trademark, trade secrets, copyright on databases, or even patents.

Although computer programs are expressly excluded from patent protection under EU law, they may qualify in certain strict conditions.

Author: Nathan Azizollahoff