The UK High Court passed judgment last week in SAS Institute v World Programming. This case concerned, and the High Court judgment was defined by, the impact of the Software Directive (Directive 91/250) on the extent of copyright protection afforded to software programs – on which the High Court previously, after delivering its first judgment, referred a number of clarification questions to the European Court of Justice, which the ECJ answered.
SAS’s “Base SAS” program is part of a suite of data analysis programs – Base is a key element of the development environment that enables users to write applications to customise the program suite. The applications are written in a programming language unique to SAS. World Programming, after studying the functionality but, crucially, without seeing the source code of, the SAS programs, wrote its own set of programs in the SAS language which were able to emulate the functionality of the equivalent SAS programs. SAS sued for copyright infringement in respect of various elements of the competing programs.
SAS’s claim gave rise to several interesting legal questions: to what extent can copyright protect the functionality of a software program; can a programming language itself be copyright protected; and how far can licence restrictions go towards preventing users creating competing products by observing products they are licensed users of?
The key points from the judgment are that:
- Copyright protection for software extends to the expression of the program (i.e. its code); not its functionality – if it did, then it would be possible to monopolise ideas, and no-one could ever create a competing program which performs the same functions in a similar way.
- The SAS programming language was not protected as a copyright work in itself – although it was an intellectual creation that did not automatically mean that it is, for copyright purposes, itself a work. In the judge’s own words: “Even when a language is created from scratch, however, what it amounts to is a system of rules for the generation and recognition of meaningful statements.” So, you use the system to generate works.
- EU law permits the observation and testing of a software program in order to ascertain the principles and ideas that underlie the program and then use that knowledge to write another program with similar functionality – even if the licence agreement under which the program is used attempts to prohibit that. This doesn’t refer to decompilation of the program code, nor to direct copying of the code, just observation and testing while the user is doing the things it is licensed to do i.e. “loading, displaying, running, transmitting or storing“ the program as provided - the basic acts which most software licences allow so the user can “use” the program.
- Indirectly reproducing elements of the SAS User Manual in World Programming’s Manual was however an infringement of copyright, on the basis that the SAS Manual was a protected literary work and World Programming had copied a substantial part of it – the court had previously found that the World Programming developers had read the SAS Manual essentially immediately before (i.e. sometimes on the same day) writing the equivalent elements of the World Programming Manual.
Comfortingly the ECJ judgment didn’t to any great extent contradict the High Court’s original 2010 judgment. But it has given some clarity on the scope of copyright in software and suggests that the balance that IP law seeks to achieve, between protecting the interests of those who put time effort and knowledge into creating valuable work, and on the other hand maintaining a competitive landscape, is alive and well somewhere – but I guess how much of a good thing that is depends on which side of the fence you are sitting.