Competition between global technology giants has long gone beyond the scope of technology or the market behavior of the companies themselves and has grown into a number of noisy lawsuits. Large part of them are for the protection of patents and the protection of copyright in software programs, ideas and functionalities. In the light of this “technology war” a serious interest is a Decision of the Court (EU) from May 2^nd, 2012, which finally confirmed the understanding that with the current legal framework in the EU, the concepts of computer programs and their functionalities is not a subject of copyright protection. However, it has to be clarified that this do not exclude the applicability of the protection of the same objects by the order of other legal branches. For example, while creating a program with the same functionality of the previous program, the author of the second program does not violate the copyright of the author of the first and it is not excluded that the latter is protected, if he proves that an imitation of the program have been made. In Bulgaria for example, such a protection could be used by the order of the prohibition of “unfair competition”. Such a protection is not excluded also by the order of the law of industrial property, a trademark for example.

Proper understanding of the above Decision of the Court suggests clarifying the principle philosophy of copyright as the legal industry – both in general and in particular in terms of the computer programs. Object of copyright can be any work which is a result of creative activity and is expressed by any means or in any objective form. This basic idea underlies both in Berne Convention for the Protection of Literary and Artistic Works, signed in Berne on September 9^th, 1886, and in modern copyright laws in different countries (including Art. 3 of the Bulgarian Law on Copyright and Related Rights). Based on this principle basis shall be considered adopted that there is no copyright protection for content, ideas and concepts. The expression of a work is protected. This understanding has been repeatedly confirmed by the national, international and European jurisprudence, and in many international acts. In the TRIPs Agreement for example, is expressly stated that “Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such”.

The concepts of copyright protection are generally created before creation and before the acquisition of the meaning, which at this moment have the computer programs. However, it is undoubtedly that they should use a certain copyright protection. As stated in the European acts, computer program technology can be regarded as being of fundamental importance for the Community’s industrial development. For this reason is taken the approach with regard to copyright protection for computer programs to be assimilated to a literary work. Moreover, this applies to all kinds of computer programs – whether in source or object code. .  This understanding is explicitly included in the Copyright and Related Rights Act, and is enshrined in Council Directive 91/250/EEC, which regulates the protection of computer programs within the EU. According to its Art. 1, Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention. This means that the general position that the expression is protected, not the concept, is fully applied and when it comes to computer programs. In Art. 1(2) of the Council Directive explicitly in this regard is settled that the protection applies to the expression in any form of a computer program. Ideas and principles which underlie in any element of a computer program, including those which underlie in its interfaces, are not protected by the Copyright under this Council Directive. The Member States are obliged their legislation to comply with this provision. It should be borne in mind in this respect that for the purposes of the European system under the term “computer program” fall programs in any form, including those which are incorporated into hardware. As Computer programs is considered also the preparatory design work leading to the development of a computer program, but only if the preparatory work is such that at a later stage it can be a computer program.

For the understanding of the concept of the Copyright protection of the computer programs is important to be known that the computer program is a product which under its use is expected to give certain results to its user. Therefore, this user who paid to buy the program undoubtedly should have certain rights over it. For this reason, the regulation of copyright protection of software provides that the reproduction, technically necessary for the use of the program by the lawful acquirer is permitted. It is not allowed the licensing agreement of a program to prohibit loading and running necessary for the use of a copy of legitimately acquired program. The same applies to the act of correction of its errors. It is envisaged that in general the holder of a program can perform (although it is permissible to be limited through a contract) any action on the use of the copy of the program. It is very important to be pointed out that the person who has bought certain software should be able to do anything necessary to observe study or test the functioning of the program. The latest actions, however, must not violate the copyright of the program. Therefore, it is adopted that reproducing or translating by a person who has the right to use a copy of the program is legal and it does not need a permission of the right holder.

Briefly it can be said that according to the rules adopted in the EU (but not exclusively in the EU) the copyright only protects the expression of computer programs, but not the concepts and ideas underlying them. Regardless of this protection, certain rights of the holders of the programs can always be in opposition to the rights of their authors.

Despite this seemingly clear concept both in national level of different countries and the European Court often has been questioned the violation of copyrights. As a result of such a dispute has been reached the above-mentioned decision. The solution is for a preliminary ruling i.e. this is the only legal form through which to interpret the meaning of one or another rule of European law. In other words, with this decision, the European Court has given a binding interpretation of Article 1, paragraph 2 and Article 5, paragraph 3 of Directive 91/250/EEC and Article 2, letter a) of Directive 2001/29/EC on harmonization of certain aspects of copyright and related rights in the information society.

In this case, in connection with which it came to this decision, an undertaking has created a program that can perform the same functions as another program created earlier. It is important to note that on this case was not found the undertaking, developed the second program to have the source code of the first (In this connection it should be noted that in the latest Bulgarian practice there are cases where in case of identical source code and slightly modified manuals for use and interface, there is a conclusion for an infringement). Among the main reasons of the undertaking owning the rights of the “original” program to seek protection is that have been copied the software manuals, and thus indirectly has been copied the program itself. It was pretended that a violation of the copyright on the user manual itself, have been made.

The Court to answer the question of the extent of copyright protection to programs, actually answer the question of what should be considered as constituting “objective form” of a computer program. Once it came to the conclusion of which one is not such “expression,” he ruled that the legal protection does not extend that far.

In particular, as in the present decision and in their other acts, the Court had the reason to rule that these are the source and object code that allows programs to be played on a variety of computer languages (that is why if there is a copying of the source and object code, copyright infringement exists). For the interface of the programs, however, is accepted that the interface itself does not allow reproduction of a computer program, but it is only its element through which the users use its functions. However, it should be pointed out that there is judicial practice according to which the interface can be characterized as an essential element of a computer program, as far as the interface of the program provides the interaction with the hardware. The European Court is categorical that nor the functions of the computer program or its programming language and format of the data files, used during work with the computer program to use some of its functions, constitute the expression of the program within the meaning of Article 1, paragraph 2 of Council Directive 91/250. In this ways is also responded to other material issue regarding the compatibility between the “original” and the second program. In practice by the decision follows that there is no violation if the later created program can read or execute software applications, written by users of other, copyright protected program, on a programming language which is developed by the author of the first program by using the same key words and the same syntax. Also there is no violation if the second program was written so as to read from and write to data files in a format that is used by the first and was developed by its author. As it was stated, reason for this conclusion is that the programming language and the format of the files are not “objective form”.

Impressive is one of the arguments of the Court to reach this conclusion. This is actually an argument raised by the Advocate General in the case, that to assume the functions of the computer program can be protected by copyright would mean to be allowed the monopolization of ideas to the detriment of technological progress and industrial development. From this the overall logic of the policy on the protection of the software is completely apparent – it is given in relation to the importance of computer programs on technical and industrial development of the Community and to support it, not to restrict.

It is important to be noted, that this conclusion is related to the programming language as an element of computer program. It could be the author’s own work and thus the programming language itself to benefit from the copyright protection. In this case its using would be a violation – but would be violated not the copyright on the computer program, but the copyright on the programming language.

Also, when for developing a second program is used an objective form of the first, there may be a violation. The Court expressly states that if a third party obtains that part of the source or object code, associated with the programming language or the form of the data files and with their help create a similar elements in its own computer program, his actions could constitute copyright infringement in the form of ‘reproduction in part’. In this connection it should be mentioned the latest judicial practice in Bulgaria – according to a recent decision of the Sofia City Court, entered into force, when an identical source code as the the code of the original program is used, there is a breach  of the copyright of its creator.

The court’s decision also concerns another important issue which is again decided in favor of the freedom of competition between the programs and thus in “detriment” of the absolute rights of the author of the “original program”. The question concerns the rights of the licensee to observe, study and test the functioning of the program. As pointed out, a person who has bought the program has these rights in order to determine the ideas and principles which underlie in any element of the program. The question of is it permissible such a study, carried out by authorized under the license actions, but with a purpose that transcends the authorized by the license, was raised. The specifically occasion was that in the licensing conditions of the program was stated that these actions can be carried out only with a non-production purposes.

Following its principal attitude towards the protection of computer programs, the Court builds on the understanding that the meaning of the explicitly providing of these rights of the licensees in the Council Directive is to be ensured that the copyright holder can not defend with the license agreement the ideas and principles, which underlie in any element in the computer program. In other words, not only the ideas and principles are not under a copyright protection, but should not be allowed even such indirect protection. The Court is therefore explicit that the copyright holder could not prohibit with the license agreement a person who has obtained a license to determine what are the ideas and principles, settled in the various elements of the program, if he does so while performing the actions permitted by the license, as well as acts of loading and running, necessary for the use of the computer program.

Of course, as mentioned above, these actions can be carried out only in so far they do not infringe the copyright of the creator of the original program. The Court interprets this requirement in relation to the provisions concerning the “decompilation” of the programs and again in this regard, which is actually a subject of copyright protection – the source code of the program. Therefore, its conclusion is that there is no violation of the copyright of the computer program when the legally acquired license person did not have access to its source code, it only has been studied, observed and tested it, to replicate its functions in the second program. The purposes for which the study and the observation are carried out cannot be restricted by the license agreement.

The Court has answered to these questions as well, concerning the copyright on the user manuals of a protected program. The conclusion is that a User Guide could itself be protected subject to copyright. For this purpose, however, the Guide itself must be an expression of an intellectual creation of its creator. Generally, the guide is composed of words, numbers, or mathematical concepts which, taken separately, are not in themselves an intellectual creation of the author of the computer program. But through their choice, arrangement and combination, the author may express his creativity in an original manner and achieve a result which is an intellectual creation, in this case – the user guide for computer program. However, whether a violation was committed should be further examined. Such would exist only if the reproduced in a second program or a second Guide, is an expression of an own intellectual creation of the author of the copyright protected User Guide with the first computer program.

In conclusion, for copyright protection of a computer program and everything associated with it (interface, programming language, User Manual, functionalities) can be said the following: subject of protection in this way are only the objective forms, only the “products” themselves. The ideas, concepts and functions that these “products” perform, are not subject to this copyright protection. Everything that can be related as an objective form of an intellectual work can be protected, but not this because of which this creation has been created.

The purpose of copyrights may be to protect the creators of a work, including a computer program, but it can not lead to the creation of monopoly rights and holding back of technical progress only in the interest of these authors.