No More Convergence? Copyright Protection of Application Programming Interfaces in the USA and the EU

Résumé fourni par la source

In the early 2010s, it may have seemed that in the European Union (EU) and the United States (US), the scopes of copyright protection of software interfaces (including application programming interfaces or APIs) were converging. However, whether convergence is happening is questionable after Google LLC v. Oracle LLC was decided by the US Supreme Court in 2021. In the EU, API reimplementers face more copyright-related uncertainty than it may appear. Unlike the US courts, which can resolve a case concerning APIs on fair use grounds, EU courts cannot rely on copyright exceptions to balance the interests of API designers and users. Instead, the existence and extent of protection of APIs in the EU depend primarily on the application of the originality standard developed by the Court of Justice of the EU (CJEU) and on the scope of the exclusion of protection of methods of operation. The CJEU jurisprudence remains underdeveloped with respect to the latter. To achieve a result favorable to API reimplementers, a court in the EU would need to develop an expansive understanding of the exclusion in a direction signalled in the US by the Sixth Circuit in Lexmark International, Inc. v. Static Control Components, Inc. or the First Circuit in Lotus Development Corp. v. Borland International, Inc.