On 25 January, Mr Justice Arnold handed down his decision in SAS Institute Inc. v World Programming Limited  EWHC 69 (Ch), following the Court of Justice of the European Union referral judgment on 2 May 2012, concerning the extent to which copyright protects the functionality of computer programs.
SAS Institute Inc. (SAS) has developed an integrated set of programs that allows users to perform data analysis tasks. The core component of the SAS system is called Base SAS. It enables users to write and run application programs written in SAS programming language for data processing. The creation of such applications may require significant financial and time investment by the user, and a similar investment to re-write these applications should the user switch to another supplier’s software platform.
World Programming Limited (World Programming) created a system that was able to run applications written in SAS programming language. The World Programming system imitated the functionality of the SAS software to ensure users’ applications worked in the same way. No allegations were made that World Programming had copied SAS software source code in any way.
SAS claimed that World Programming had infringed the copyright in its manuals and that it had, consequently, indirectly copied the related computer programs, resulting in infringement of the copyright in the SAS software. SAS also claimed that World Programming had breached the terms of its licence to use the Learning Edition of the SAS software when creating the World Programming system.
Following the first instance hearing in June 2010, Arnold J made a reference to the Court of CJEU. The CJEU considered whether or not
- The functionality of a computer program is protected by Article 1(2) of Directive 2009/24/EC (the Software Directive).
- A licensed user of a computer program is allowed to carry out acts to determine the principles forming the basis of the program under Article 5(3) of the Software Directive, if those acts are permitted by the licence.
- The reproduction of certain elements of a user manual for another user manual, is an infringement under Article 2(a) of Directive 2001/29/EC (the Information Society Directive).
In May 2012 the CJEU ruled that
- Pursuant to the Software Directive, the functionality of a computer program and its programming language, as well as the format of data files used to provide functionality, do not comprise a form of expression of that program, and so are not protected by copyright.
- A licensed user of a computer program is entitled to observe and test the functioning of the program to determine the underlying principles of the program, if such study is undertaken in the course of ordinary use of the program without infringing the rights of the copyright owner.
- The reproduction of elements of a copyright-protected computer program manual in another program or a manual can be an infringement, if the reproduction comprises the expression of the intellectual creation of the author of the first manual.
Applying the CJEU’s answers to the facts of the case, Arnold J dismissed all SAS’ claims, except for its claim that World Programming had infringed the copyright in the SAS manuals by substantially reproducing the work in its own manual.
Arnold J spent a significant proportion of his judgment evaluating whether the SAS language itself could be protectable by copyright as a work under the Information Society Directive. Although SAS did not make the argument that the SAS language was a distinct copyright work, Arnold J gave his preliminary views on the subject. He found that a programming language is not capable of being a work, drawing an analogy between a programming language and a written language. Arnold J held that the language is the material from which works, like dictionaries, may be created. He dismissed the argument that a language was an intellectual creation and therefore a work. In doing so, he used the analogy that a scientific theory is an intellectual creation that is not a work, whereas an article describing that theory would qualify as a work, thereby attracting copyright protection.
Until the CJEU answers the question of whether or not a programming language is a work protectable by copyright, current case law teaches that the functional elements of a computer program are not protected under copyright law. In the meantime, software developers may be able to look to patent law to protect their efforts, bearing in mind that any such protection from the European Patent Office is subject to the noteworthy limitation that software-related inventions must have a technical effect.