Short answer
A graphical user interface can be protected — but not under the Software Directive.
In Bezpečnostní softwarová asociace (C-393/09) the Court of Justice held that a graphic user interface is not a form of expression of a computer program within the meaning of Article 1(2) of the Software Directive, and so cannot be protected by copyright in computer programs under that Directive. A GUI does not enable the program to be reproduced; it is the means by which users interact with it.
The Court then held that a GUI can be protected as a work under the general copyright framework of the InfoSoc Directive, provided it is its author's own intellectual creation.
So the answer is a two-step analysis:
- As a computer program? No.
- As an ordinary copyright work? Possibly — if original in the Union-law sense.
The practical consequence is that the mandatory user rights in the Software Directive, including Article 5(3) study and Article 6 decompilation, do not attach to the GUI as such, and the ordinary InfoSoc exceptions apply instead.
Why the Software Directive does not cover it
The Directive draws its own boundary:
"Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive." —
Following BSA, the object of protection is the expression in any form of a computer program — such as the source code and the object code — which permits reproduction of the program in different computer languages, together with preparatory design work capable of leading to such a program.
A GUI does not meet that description. You cannot reconstruct the program from its screens. The Court has since restated the distinction, including in C-159/23 (2024), which records that the graphic user interface of a computer program does not enable the program to be reproduced.
The originality test under InfoSoc
Where a GUI is assessed as an ordinary work, the question is whether it is the author's own intellectual creation — the standard applied in Infopaq International (C-5/08) and developed since.
What that involves in practice:
- Free and creative choices. Where the author could express creativity through free choices and a personal stamp, originality is more readily established.
- Not dictated by technical function. Where the components of the interface are dictated solely by their technical function, the criterion is not met, because the different methods of implementing the idea are so limited that the idea and the expression become indissociable.
- Not mere convention. Standard controls, conventional layouts and platform-mandated patterns are unlikely to qualify.
- The whole may exceed the parts. An overall arrangement may be original even where individual elements are not.
So a distinctive, visually elaborate interface with genuine design choices is a plausible candidate. A grid of standard system controls in a conventional arrangement is not.
What else the GUI question engages
Communication to the public. BSA also addressed television broadcasting of a GUI, holding that such a broadcast is not a communication to the public of the work within Article 3(1) of the InfoSoc Directive, because in that situation the public cannot have access to the essential element characterising the interface — interaction with it.
Graphic elements separately. Icons, illustrations, typefaces and animations may be protected as artistic works independently of the interface as a whole.
Text. Labels, menu wording, error messages and help text are literary works if original, though short functional phrases will rarely qualify.
Designs. A GUI or its elements may be registrable as a design under the EU design framework, or protected as an unregistered Community design for its limited term. This is often a better fit than copyright for the visual appearance of an interface.
Trade marks. Distinctive icons and logos within an interface may be registrable.
Layout versus code. The code generating the interface remains protected as a computer program under the Software Directive, whatever the status of the interface it produces. Copying the rendering code infringes even if the resulting screen design is unoriginal.
Why the classification matters
The difference between the two regimes is not academic.
User rights differ. Article 5(3) of the Software Directive gives a lawful user a right to observe, study and test the functioning of the program, and Article 8 makes any contrary contract term null and void. Article 6 gives a decompilation right on strict conditions, similarly protected. Those provisions attach to the computer program. They are not the framework for a GUI treated as an ordinary work.
Exceptions differ. A GUI protected under the InfoSoc Directive is subject to that Directive's exceptions — quotation, incidental inclusion, private copying where implemented — all subject to the three-step test in Article 5(5).
Ownership rules differ. Article 2(3) of the Software Directive provides that where a program is created by an employee in the execution of their duties or on the employer's instructions, the employer is exclusively entitled to exercise all economic rights, unless otherwise agreed. There is no equivalent harmonised rule for ordinary works, so employee-authorship of GUI design is governed by national law and may need to be addressed in contract.
That last point is a practical trap. A company may own the code by operation of the Directive while the GUI design sits with a designer or agency unless assigned.
Practical guidance
For designers and rightholders:
- Document design choices and iterations; originality is evidenced by the choices made, not asserted.
- Take written assignments of GUI design rights from employees and contractors; do not rely on the software-ownership rule.
- Consider registered design protection for distinctive interface appearance.
- Register logos and distinctive icons as trade marks.
- Keep the code protected as a program regardless of the GUI position.
For developers building comparable interfaces:
- Functional layouts and standard controls are not protected.
- Do not copy distinctive graphic assets, illustrations or custom iconography.
- Write your own labels, messages and help text.
- Check registered designs and trade marks separately; a clear copyright position does not clear those.
- Do not assume Software Directive user rights extend to the interface.
Operational checklist
- Ask first whether the element is part of the program's expression or of the interface.
- Apply the author's-own-intellectual-creation test to the interface.
- Discount elements dictated solely by technical function.
- Analyse graphic assets, text and overall arrangement separately.
- Check designs and trade marks in addition to copyright.
- Confirm chain of title for GUI design, which may differ from the code.
- Remember that broadcasting a GUI was held not to be communication to the public in BSA.
Conclusion
A GUI occupies a deliberate gap in the EU framework. It is not a form of expression of a computer program, so the Software Directive does not protect it — and the mandatory study and decompilation rights in that Directive do not reach it either. But it can qualify as an ordinary copyright work where it is the author's own intellectual creation, which turns on whether the designer made free and creative choices rather than choices dictated by technical function.
For businesses, the consequence worth acting on is ownership. The Software Directive vests employee-created program rights in the employer by default; GUI design rights are not covered by that rule. Assign them expressly, and consider registered design protection alongside.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.