C-406/10 SAS Institute v. World Programming Ltd (WPL)

The ECJ issued an important ruling last week regarding how far copyright protection for software should extend.

The case involves two software development companies: SAS and WPL. SAS Institute developed a set of computer programs used for data analysis (the ‘SAS System’) that allows users to write and run their own Scripts in an SAS-specific programming language (para. 24).

WPL developed a competing program called the World Programming System that sought to emulate the SAS System as close as possible. In the process, it obtained a license to the “Learning Edition” of the SAS program and manuals, which it studied, but did not access or copy the SAS source code. The World Programming System is written in the SAS Language, and is designed to allow the use of Scripts originally written for the SAS System (para. 25)…

SAS accused WPL of copyright infringement. SAS argued that WPL copied its manuals and thereby indirectly copied its programs; breached the license of the “Learning Edition” of the SAS System; and created its own manual that was based on the SAS System’s, thereby infringing its copyrights (paras. 25, 27).

The High Court of Justice of England and Wales asked the ECJ for a preliminary ruling to determine how it should interpret the copyright protections contained in Directives 91/250 and 2001/29.

The ECJ addressed three primary issues.

First, following the Advocate General, the Court held that: “neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program,” and are therefore not protected under that program’s copyright (para. 46). The language in which the program was written is an “idea or principle,” not a copyrightable “expression.” This does not mean that programming languages are not copyrightable: particular implementations could be protected by copyright if they are a form of expression and the author’s intellectual creation (para. 45), but it does mean that the copyright given to a program like SAS does not extend to “ideas and principles” like the language it was written in.

Second, the ECJ concluded that “a person who has obtained a copy of a computer program under a license is entitled, without the authorisation of the owner of the copyright, to observe, study or test the functioning of that program so as to determine the ideas and principles which underlie any element of the program, in the case where that person carries out acts covered by the licence and acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner of the copyright in that program” (para. 62). This means that a person who has a license to a program can “observe, study or test” it so long as what they are doing is covered by the license or necessary to run the program, and so long as they do not infringe copyright. In essence, the copyright holder can’t prevent users from studying the program (so long as they do not violate its copyright or have access to the source code), even if they do so with the intention of developing something similar, because this would unfairly imply a copyright on “ideas and principles.”

Third, the Court found that “the reproduction, in a computer program or a user manual for that program, of certain elements described in the user manual for another computer program protected by copyright is capable of constituting an infringement of the copyright in the latter manual if … that reproduction constitutes the expression of the intellectual creation of the author of the user manual for the computer program protected by copyright” (para. 70). Basically, this means that copying parts of a program’s documentation into another program could infringe copyright, but only if they are “expression.” The “keywords, syntax, commands, and combinations of commands, options, defaults and iterations” are not protected individually, but “the choice, sequence and combination” of words, figures, or mathematical concepts may be protected as the author’s intellectual creation (paras. 66-67). Whether or not WPL copied or not is still up to the national court to decide.

As has been pointed out elsewhere, this case is similar to the Oracle v. Google case currently making its way through the US courts. We’ll undoubtedly be seeing a lot more in the next few years regarding the issue of how far intellectual property protection for software and programming languages should extend.

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