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Law for Business

Knowhow - guidance - precedents

06 SEP 2012

Copyright: SAS Institute -V- World Programming Limited


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:

  • WPL had copied parts of SAS' user manuals when creating its software and therefore infringed copyrighting in those manuals;
  • By copying the manuals, WPL had indirectly copied the SAS software and infringed that software copyright.

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 Decision

The ECJ ruled that:

  • Under the Software Directive, the functionality of a computer program, its programming language and the format of data files used in a computer program do not constitute a form of expression of that program and accordingly they are not protected by copyright (Article 1(2));
  • A licensee of a computer program may observe, study or test its functioning to work out the ideas and principles which underlie any element of the program without further permission from the copyright owner where the licensee carries out acts which are within the licence and necessary for the use of the program, provided that the licensee does not infringe the copyright owner's exclusive rights (Article 5(3));
  • Under the Information Society Directive, reproducing in a computer program or a user manual elements from the user manual of another program will only constitute copyright infringement if reproduction constitutes "the expression of the intellectual creation of the author of the original manual"; whether the reproduction does so is a matter for the national court to decide.


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.


Click here to view John Warchus's profile John Warchus Partner Tel: 0118 953 3956 Fax: 0118 939 5756 E-mail: jwarchus@clarkslegal.com
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