The Court of Justice of the European Union has again examined the question of which elements of a computer program are protectable by copyright. In line with its previous decisions, it has confirmed that the functionality, language and data format of a program are not protectable as they are part of the ideas or principles underlying the program.
The reference for a preliminary ruling in the present case was made from the High Court of England and Wales. It sought interpretation of a number of provisions of European law concerning the legal protection of computer programs by way of copyright.
The questions arose from a dispute between SAS Institute Inc. (SAS) and World Programming Ltd (WPL). SAS is a developer of analytical software, written in a proprietary language. WPL, on realising there was a market for software capable of emulating the components of the SAS product, developed a program with the same functionality as that of the SAS program. WPL did not have access to the source code of the SAS product.
Rather than answer the detailed questions posed by the High Court, the CJEU grouped the questions into three general considerations of the applicable law.
The first was whether Article 1(2) of Directive 91/250, which excludes ideas and principles underlying a computer program from protection, should be interpreted as allowing for the protection of the functionality, programming language and data format of a computer program. The response of the CJEU was negative, subject to the caveat that if the source code of the original program had been used in the creation of the new program, then this would constitute at least partial reproduction of the source code and consequently infringement of the copyright in the source code.
The second question answered by the CJEU concerned Article 5(3) of Directive 91/250, which grants a person with a right to use a program the further right without authorisation to observe, study or test the functioning of the program during its use. As WPL had purchased copies of the SAS program under a licence that restricted the use of the program to nonproduction purposes, the CJEU was effectively asked to consider whether the right in Article 5(3) extends to circumstances where the person carries out acts with a purpose that goes beyond the framework established by the licence, as in the present case.
The CJEU considered that it was not possible to restrict the right in Article 5(3) through the terms of the licence. However, for this to apply, the user—as in the present case—must not have had access to the source code. The CJEU noted that interpretation is in line with Article 6(2)(c) of Directive 91/250, which states that information obtained through the decompilation of a programme cannot be used to develop a new one.
The final issue addressed by the CJEU was whether the reproduction in a computer program, or the user manual for that program, of certain elements described in the user manual for another program infringes the copyright in this manual. Following a previous ruling of the CJEU, the deciding factor in these circumstances will be whether the element reproduced constitutes the expression of the intellectual creation of the author of the user manual. This, predictably, is a question for the national court to decide.
The approach of the CJEU should come as no surprise, following as it does its previous line on the subject of the protection of computer programs. Underpinning each is the fundamental proposition that the ideas and principles underlying the program cannot be protected by copyright. This includes the programming language, the format of data files and the functionality of a program. In rejecting protection for these features, the CJEU agreed with the opinion of the Advocate General that allowing for such protection would amount to a monopoly on the ideas underlying the software, which would be to the detriment of technological progress.
This decision clearly favours developers of new software, rather than the owners of existing computer programs that the developers seek to emulate. That said, these developers should take note of how rapidly their protection fades away if it can be proved that