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By Jon English
It has long been the case that copyright does not protect ideas, merely the expression of those ideas. This has given rise to problems in the case of computer software where, largely, the only expression of the underlying idea is in its source code and so developers are exposed to those who have the skill and knowledge able to replicate the functionality of software merely through studying how it works, rather than examining and copying source code.
In the recent case of SAS Institute Inc v World Programming Ltd, Case C-406/10, 2 May 2012, the European Court of Justice has held that copyright protection under the Software Directive does not extend to the functionality of the software, its programming language or the format of the data files that contain the software.
The SAS Institute is a provider of business analytical software known as the SAS System. The core part of the SAS System is a component known as Base SAS that enables users to write their own applications to manipulate data in a language known as the SAS language. Users who had written such programs were obliged to continue paying licence fees to SAS for as long as they wished to continue use of their programs, as they would not function with any other software.
World Programming Limited ("WPL") spotted an opportunity to lure customers away from the SAS System and sought to write their own software which would support applications written in the SAS language. On the evidence it appears that WPL studied the SAS System and its corresponding manuals and came up with something very similar to the SAS System. There was no evidence that WPL had access to SAS's source code at any time and that any source code in the WPL system was a literal copy of the source code in the SAS System.
SAS brought a copyright infringement claim against WPL in the High Court for, amongst other things:
1. copying the SAS manuals in order to produce their own manuals; and
2. indirectly copying the computer programs forming part of the SAS System.
In coming to a decision, Arnold J referred to the ECJ a number of issues on the interpretation of Articles 1(2) and 5(3) of the Software Directive and Article 2(a) of the Information Society Directive.
The questions that Arnold J referred can be summarised as follows:
1. Can copyright be extended to functionality, a programming language and the format of data files under Article 1(2) of the Software Directive?
2. Where a person has a licence to use a computer program, are they entitled, without the authorisation of the owner, to perform acts of loading, running and storing the program in order to observe, test or study the functioning of the program so as to determine the ideas and principles which underlie any element of the program, even if such acts go beyond the scope of their permitted use under the licence?
3. Where a manual is protected by copyright as a literary work, is Article 2(a) of the Information Society Directive to be interpreted as meaning that it is an infringement of the copyright in the manual for a person to reproduce certain things from the original manual such as mathematical formulae and particular commands?
In relation to the first question, the ECJ decided that the functionality of a computer program cannot form the object of copyright protection. Advocate General Bot used the example of a piece of software used by an airline for booking seats. Such software would need to be able to take details of names, allocate seats, deal with special requests and issue receipts. The functionalities were similar to ideas and it would be legitimate that other software exists which perform the same functions. As such functions were similar to ideas, it would not be appropriate to grant monopolies over them.
The ECJ also held that programming languages and data files could not form the basis of copyright protection save in certain limited circumstances.
The next question the court considered was whether a licensee of software was permitted to study the underlying functionality and principles of the software in order to be able to understand how it works. The answer was yes, but provided the studying was undertaken within the framework of the licence. In the present case, while Article 6(2)(c) of the Software Directive did not allow information obtained through a process of decompilation to be used for the development of a computer program similar to the decompiled program, or for any other act which infringed copyright in it, this was irrelevant where the licensee did not have access to the source code of the licensed program, but merely studied the way the software worked in order to attempt to replicate it.
On the final question of whether the copying of certain parts of the user manual could constitute infringement, it was held that individual elements of the manual (such as syntax, keywords and formulae) were not capable of protection as they were ideas rather than the expression of the ideas. However, it was for the national court to decide whether the elements reproduced in the manner that they were in the manual are the expression of their author's own intellectual creation and are therefore protected on that basis.
The response of Advocate General Bot is not surprising and is broadly in line with cases decided in the UK on the non-literal copying of computer software. For example, in Navitaire Inc v Easyjet Airline Company and another  EWHC 1725 (Ch), it was held that copyright was not infringed where source code was written specifically to emulate the functionality of an existing program, but without literal copying of the existing source code.
Whilst it is important to note that the matter is still subject to a final ruling in the UK courts, the position of Advocate General Bot is likely to be welcomed by those concerned about the implications of extending copyright so as to grant monopolies over what is essentially a business function. However, this will be of little comfort to businesses who spend significant time and money to develop sophisticated computer programs only to have such programs emulated by their rivals.
Jon English is Group Legal Counsel for The Rank Group Plc which is a leading European gaming-based entertainment business, a FTSE 250 company and in the UK the group operates Mecca Bingo, Grosvenor Casinos and Blue Square Bet.
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