On 2 May 2012 the Grand Chamber of the Court of Justice of the European Union published its decision in SAS Institute Inc v World Programming Ltd (Case C-406-1) ruling on the extent of copyright infringement claims over ideas and procedures.

The legal issues

The CJEU’s ruling addresses three distinct issues which are of commercial significance to all software and high-tech companies who carry on business in Europe or who have Europe-based competitors.

  1. Can the functionality of a computer program, the programming language and format of data files be construed as a form of expression, and therefore be protected by copyright?
  2. What is the liability of a licensee – even if a competitor - who acts outside the scope of that licence to observe and study the functioning of a computer program in order to determine the ideas and principles behind that program?
  3. Does the reproduction in a program (or user manual for that program) of material described in a user manual for another program constitute copyright infringement?

The EU Court of Justice’s ruling

  1. The extent of copyright protection of computer programs

Computer programs are protected under the Berne and other conventions as literary works, whether in source or object code. Such copyright protection only extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.  

The CJEU held in SAS Institute that copyright protection of computer programs extends to all forms of expression that permit reproduction of the program, including the source code and object code.  

The CJEU identified a number of elements commonly found in computer programs which do not qualify for copyright protection as not being a protectable form of expression. The CJEU held that to do so would make it “possible to monopolise ideas, to the detriment of technological progress and industrial development”. On that basis the CJEU held that the following elements do not qualify for copyright protection as they only constitute one element of the program by means of which users make use of the features of that program, and do not enable the reproduction of the computer program.  

  • The graphic user interface
  • The functionality of a program
  • Programming language
  • The format of data files used by a program to exploit particular functions of the program.
  1. The liability of licensees

The CJEU held in accordance with Article 5(3) of Directive 91/250 on the legal protection of computer programs that the purchaser of a software licence, even if a competitor, is entitled to observe, study or test the functioning of that software in order to determine the ideas and principles behind any and all elements of that program. Thus such actions by the defendant when creating its computer program did not infringe copyright in the claimant’s computer program as neither the source code nor object code was utilised in doing so.  

The CJEU reiterated that under Article 5(3) of Directive 91/250 a licensee is entitled to determine the ideas and principles which underlie any element of the computer program if the licensee does so while performing any of the acts of loading, displaying, running, transmitting or storing that program which the licensee is entitled to do.  

The CJEU made it clear that copyright proprietors cannot use the contractual nature of a software licence to stop licensees from performing acts necessary to observe, study or test the functioning of the program, provided these acts do not infringe the copyright in that program.

  1. Copying from the user manual

The CJEU held that the reproduction of particular elements described in a user manual for a computer program with copyright protection is capable of constituting a copyright infringement by a latter manual, where the material reproduced constitutes an expression of the author’s intellectual creation.  

The CJEU determined that although keywords, syntax, commands, combinations of commands, options, defaults and iterations consist of words, figures or mathematical concepts when considered in isolation are not, as such, an intellectual creation of the author of the computer program, whether or not these elements would collectively constitute an intellectual creation of the author, protected by copyright, is ultimately a question of fact for the relevant national courts.  

The CJEU determined that as a matter of principle it is perfectly possible through the choice, sequence and combination of those words, figures or mathematical concepts for an author to express sufficient creativity in an original manner to give rise to a copyright in a resulting user manual for a computer program. As always, this will be a matter of fact and degree.

Factual background

SAS Institute Inc. (SAS) develops integrated computer programs that enable users to create and run tailored computer programs, facilitating users with data processing and analysis tasks. The core component of this allows users to write and run their own application programs – run in SAS’ own unique programming language - to adapt SAS’ program to work with their data.  

World Programming Ltd (WPL) saw a gap in the market for an alternative software program that was capable of reading programs written in the SAS language. It produced a substitute program that ensured that the same inputs would produce the same outputs, thereby allowing existing SAS programs to be run on their own.  

WPL’s program was created by WPL’s analysis of a lawfully acquired Learning Edition of the SAS program, which was obtained through licence agreements limiting the licensee’s rights to nonproduction purposes. WPL studied this Learning Edition to understand the program’s functionality and subsequently reproduced it, with minor variations.