AI-Generated and AI-Assisted Code Under EU Law: Intellectual Property and Compliance Challenges

Part 4: CJEU case law on computer programs

Av. Mirela Takacs · May 9, 2026 · 11 min read

It is also relevant to analyze the case law of the Court of Justice of the European Union (CJEU) regarding computer programs, to see how the copyright rules relating to computer programs have been interpreted and applied in cases involving the infringement of the exclusive rights of the owners of computer programs and the limits of these rights.

Although there is not much case law on this matter, the existing cases mainly deal with most of the elements of a computer program such as algorithms and logic, preparatory design material, source code, object code, program structure and organization, API interfaces, graphical and audio-video interface, as well as auxiliary documentation.

 Visually this is how the main CJEU case law regarding computer programs looks like at this moment:

Computer programs in CJEU case law Copyright protection under Directive 2009/24 Software Directive Literal Elements — Protected: Source code Object code Preparatory design material (Case C‑406/10), (Case C‑159/23) Non-Literal Elements: Structural design of source code (C‑406/10, referring court, not expressly held by CJEU, p. 25) Internal structure and organisation of the software (C-159/23, referring court, not expressly held by CJEU, p. 50) Not protected: Functionality Programming language Format of data files (Case C‑406/10) Copyright protection under Directive 2001/29 The ordinary law of copyright Protected: Graphic User Interfaces (C‑393/09) Protected: Graphic & sound elements (Case C‑355/12) Protected: User manual — literary work (Case C‑406/10, p. 64) Not protected: Components of a GUI differentiated only by technical function (Case C‑393/09) Not protected: Keywords, syntax, commands and combinations of commands, options, defaults and iterations consisting of words, figures or mathematical concepts in isolation (C‑406/10) Exception: only if the choice, sequence and combination of those words, figures or mathematical concepts express the author’s creativity in an original manner (C‑406/10) Enforcement Directive 2004/48 Key principle: Owner must benefit from guarantees of Dir. 2004/48 regardless of national liability regime applicable

The most relevant is Case C‑406/10, SAS Institute Inc. v World Programming Ltd. (WLP) [1]: an action brought by SAS Institute for infringement of copyright in computer programs and manuals relating to its computer system for statistical analysis. In short, WLP produced an alternative software that had the same functionality as the SAS System. The Court’s judgment:

  • Protected under Directive 2009/24/EC:
    • the preparatory design work capable of leading to the reproduction or the subsequent creation of such a program (p. 37)
    • the source code and the object code of a computer program (p. 38)
  • Not protected:
    • the functionality or the programming language and the format of data files used in a computer program in order to exploit certain of its functions (p. 39)
  • Protected under Directive 2001/29/EC:
    • the user manual for SAS Institute’s computer program (p. 64)
  • Not protected:
    • the keywords, syntax, commands and combinations of commands, options, defaults and iterations consisting of words, figures or mathematical concepts which, considered in isolation, as such (p. 66); exception – only through the choice, sequence and combination of those words, figures or mathematical concepts that the author may express his creativity in an original manner and achieve a result, namely the user manual for the computer program, which is an intellectual creation (p. 67)
  • Relevant aspects:
    • in order to produce the alternative software, WLP did not have access to the source code of the SAS components and did not copy any of the text of that source code or any of the structural design of the source code (p. 25)
    • WPL lawfully purchased copies of the Learning Edition of SAS Institute’s program and studied, observed and tested the program in order to reproduce its functionality in a second program (p. 48)
    • a licensee is entitled to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program (p. 50) within the framework of the acts permitted by the license (p. 54-55)

Before this case, in another file, Case C-393/09, Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury[2] regarding graphic user interfaces, the Court held that:

  • Protected under Directive 2001/29/EC:
    • the graphic user interface if it is its author’s own intellectual creation (p. p. 44, 46)
    • explanation: given that interfaces are parts of a computer program which provide for interconnection and interaction of elements of software and hardware with other software and hardware and with users in all the ways in which they are intended to function (p. 39) and constitute an element of that program by means of which users make use of the features of that program (p. 40-41), such an interface does not constitute a form of expression of a computer program within the meaning of Article 1(2) of Directive 91/250 (later replaced by Directive 2009/24/EC, which did not bring any substantive changes) and that, consequently, it cannot be protected specifically by copyright in computer programs by virtue of that directive (p. 42)
  • Relevant aspects:
    • it is for the national court to ascertain if it meets the criterion of originality (p. 48), but when making that assessment, the national court must take account, inter alia, of the specific arrangement or configuration of all the components which form part of the graphic user interface
    • the criterion of originality cannot be met by components of the graphic user interface which are differentiated only by their technical function (p. 48); where the expression of those components is dictated by their technical function, the criterion of originality is not met, since the different methods of implementing an idea are so limited that the idea and the expression become indissociable (p. 49) and in such a situation, the components of a graphic user interface do not permit the author to express his creativity in an original manner and achieve a result which is an intellectual creation of that author (p. 50).

A few years later, in another relevant case, C-159/23, Sony Computer Entertainment Europe Ltd v Datel Design and Development Ltd and Others[3] – Variables in RAM, the Court had to rule whether the use of a software which runs simultaneously with a protected computer program and changes the content of variables which the protected computer program has transferred to the RAM of that computer and uses in the running of that program affects the scope of protection of the computer program. The Court’s judgment:

  • the protection guaranteed by Directive 2009/24 is limited to the intellectual creation as it is reflected in the text of the source code and object code and, therefore, to the literal expression of the computer program in those codes, which constitute, respectively, a set of instructions according to which the computer must perform the tasks set by the author of the program (p. 38)
  • the competitors of the author of a computer program are free, once they establish through independent analysis which ideas, rules or principles are being used, to create their own implementation of them in order to create compatible products. They may, moreover, build on the identical idea, but may not use the same expression as that of other protected programs (p. 48)
  • the referring court observed that Datel’s software is installed by the user on the PSP console and runed at the same time as the game software, but that software did not change or reproduce either the object code, the source code or the internal structure and organisation of Sony’s software used on the PSP console, but merely changed the content of the variables temporarily transferred by Sony’s games to the PSP console’s RAM (p. 50)
  • the content of the variable data transferred by a protected computer program to the RAM of a computer and used by that program in its running does not fall within the protection conferred by Directive 2009/24 in so far as that content does not enable such a program to be reproduced or subsequently created (p. 52).

As for the graphic and sound elements, in the Case C‑355/12, Nintendo Co. Ltd and Others v PC Box Srl and 9Net Srl[4], the Court held that:

  • there is nothing in Directive 2001/29 indicating that the parts of a work are to be treated any differently from the work as a whole. It follows that they are protected by copyright since, as such, they share the originality of the whole work (p. 22)
  • videogames constitute complex matter comprising not only a computer program but also graphic and sound elements, which, although encrypted in computer language, have a unique creative value which cannot be reduced to that encryption. In so far as the parts of a videogame, in this case, the graphic and sound elements, are part of its originality, they are protected, together with the entire work, by copyright in the context of the system established by Directive 2001/29 (p. 23)

Another relevant case, but regarding the licensing terms, is Case C‑666/18, IT Development SAS v Free Mobile SAS[5] concerning the alleged infringement of the copyright of a software package and the resulting damage. IT Development alleged that Free Mobile had modified the licensed software, in particular by creating new forms, even though the licensee expressly undertook not to reproduce, directly or indirectly, the software package, to decompile and/or carry out retro-engineering operations on it, as well as to modify, correct, adapt, create second works and add, directly or indirectly, to that software, in accordance with the licensing agreement terms. This case is relevant for Member States whose civil liability law is based on the principle of non-cumulation. The Court concluded that:

  • Directive 2009/24 does not make the protection of the rights of the owner of the copyright of a computer program dependent on whether or not the alleged infringement of those rights is a breach of a licence agreement (p. 33)
  • Directive 2004/48 provides for the measures, procedures and remedies necessary to ensure the enforcement of intellectual property rights, including the rights covered by Directive 2009/24 (p. 35) and it applies to ‘any infringement of intellectual property rights’ including infringements resulting from the breach of a contractual clause relating to the exploitation of an intellectual property right (p. 36)
  • the infringement of a clause in a licence agreement for a computer program concerning the intellectual property rights of the owner of the copyright of that program falls within the concept of ‘infringement of intellectual property rights’ within the meaning of Directive 2004/48 and that, consequently, that owner must be able to benefit from the guarantees provided for in that directive (p. 42); still, it does not lay down the exact means of implementation of those guarantees and does not lay down the application of a specific liability regime in the event of infringement of those rights (p. 43)
  • the application of a particular liability regime should in no way constitute an obstacle to the effective protection of the intellectual property rights of the owner of the copyright of that program as established by Directives 2004/48 and 2009/24 (p. 46)
  • that owner must be able to benefit from the guarantees provided for by Directive 2004/48, regardless of the liability regime applicable under national law (p. 50).

Regarding cases concerning AI, strictly for the field of computer programs, to my knowledge, there is no case registered with the CJEU yet, but there is a relevant one regarding the content of web pages of press publishers, Case C-250/25, Like Company v. Google Ireland[6], the first CJUE referral on AI and copyright which is pending.

Returning to Chardet, if a similar case were to be resolved under EU law, we would have all the necessary pieces to analyze the entire legal puzzle of computer program protection. Let’s solve it in Part 5.

Part 1: A real-world example: the relicensing of Chardet

Part 2: Terms of Service of AI platforms & EU main regulations for computer programs

Part 3: Training data

Part 5: Literal Elements vs. Non-Literal Elements in Computer Programs

[1] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62010CJ0406&qid=1777024384073 – Case C‑406/10 (expression vs. functionality)

[2] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62009CJ0393&qid=1777024384073 – Case C-393/09 (GUI)

[3] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62023CJ0159 – C-159/23 (Variables in RAM)

[4] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62012CJ0355 – Case C‑355/12 (graphic and sound elements)

[5] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62018CJ0666&qid=1777024384073 – Case C‑666/18 (liability regime)

[6] https://eur-lex.europa.eu/eli/C/2025/3039/oj/eng – Case C-250/25 (AI related relevant case)

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