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In an important ruling, the ECJ has decided that copyright cannot protect the functionality of a software program, its programming language or its data file format, so that rivals can study a product's functionality and create a product that provides identical functions.
In this dispute the Claimant, SAS, was a developer of analytical software and this software enabled users to write and run application programs in the SAS programming language. Without having access to or copying SAS' source code, WPL had examined the functionality and user manuals of the SAS program and created a rival software product which could execute the programs written by SAS and, in doing so, WPL had deliberately tried to copy as much of the functionality of SAS's software as possible. In essence, SAS's main claims were that:
This case came before the High Court which was required to refer it to the ECJ in order to obtain an opinion with regard to the meaning of the Software Directive and the Information Society Directive, which were relevant to the issues raised. In particular, the Software Directive states that:
"Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, not protected by copyright under this Directive." (Article 1(2))
The ECJ ruled that:
In confirming that the functionality of a computer program is not protected by copyright, the Court referred to its earlier decision in the BSA case and remarked that, to allow the functionality of a program to be protected by copyright would make it possible in future to monopolise ideas, which would harm the ability to make technological advances. In other words, a business is entitled to study how a rival program operates and the functionality it provides in order to create a product with similar or even identical functionality, provided that they refrain from direct textual copying. It was a key aspect of this case that WPL had no access to the Claimant's code and had reproduced the functionality on the basis of observing, studying and testing the SAs program.
In relation to the claim that WPL had infringed copyright in the user manual of SAS, the Court emphasised that any text, commands and combinations of commands copied had to sufficiently significant to amount to the "intellectual creation" of the original author before its copying could be copyright infringement.
As a result of this and earlier decisions, it is now pretty clear that imitating or copying the functionality of another computer program where there is no access to the source or object code, cannot amount to copyright infringement under the Software Directive. In addition, the case seems to confirm that a copyright owner cannot contractually prevent the licensee from exercising its right to observe, study or test the function of a program so long as the licensee does not engage in any copying which is not required for the normal loading and running of the program. The decision is consistent with earlier English cases on infringing software copyright.
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