A further perspective was totally neglected by the CJEU in the UsedSoft ruling that might be summarized as follows: what if a computer program incorporates other protected subject matter as well? The present article is covering two related issues below: First, the inclusion of sound recordings, audiovisual contents or photographs/graphic works into the computer program, and Second the question of graphic user interfaces.
Irrespectively of the facts of the UsedSoft case several types of computer programs, especially computer games, include further works, for example sound recordings, audiovisual contents and photographs/graphic works. These pieces of the whole work are similarly protected by copyright law, as long as they are identifiable and surpass the threshold of originality requirement. [354] As the CJEU stressed it in its PC Box ruling: "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." [355]
The latter statement, however, leads us to the need of the cautious consideration of two distinct arguments. Let's suppose that CJEU's argument in the UsedSoft case was ultimately correct. In this situation intangible computer programs would be subject to the principle of exhaustion under the lex specialis provisions of the Software Directive. On the other hand, the resale of any other subject matter in intangible form would be treated under the lex generalis provisions of the InfoSoc Directive (and the WCT Agreed Statement), and they are ultimately excluded from the scope of exhaustion. In the case of video games, however, these two statements are irreconcilable. It would mean that the program might be resold, except the sound recordings, audiovisual contents and photographs. This solution is clearly absurd. Naturally, all these uncertainties disappear, if we follow the logic expressed above and accept that the ruling of the CJEU in the UsedSoft case regarding the applicability of the exhaustion principle to intangibles is erroneous.
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