The Court of Appeal has rejected an appeal brought against a number of the High Court's findings in SAS Institute Inc. v World Programming Ltd concerning the extent to which copyright protects the look and feel of computer programs. As a result, it remains the law in the UK that protecting the look and feel of a computer program via copyright is difficult, provided the underlying code is different.

At first instance, Arnold J had only found limited copyright infringement in WPS reproducing parts of the SAS Manual in its own WPL Manual, albeit not in relation to the WPL Guide, (the "Manual to Manual" claim) and had rejected SAS's other claims that WPL had (1) infringed the copyright in SAS's manuals in creating the WPS Program (the "Manual to Program" claim), (2) indirectly infringed the copyright in the SAS Program in creating the WPL Program (the "Program to Program" claim) and (3) infringed copyright in the SAS Learning Edition by using it outside the scope of the licence (The "Learning Edition claim").

SAS appealed on the Manual to Program claim, the Learning Edition claim and the remainder of the Manual to Manual claim. It did not appeal against the rejection of the Program to Program claim following the decision of the CJEU (Case C-406/10, 2 May 2012), it was common ground between the parties that neither the SAS Language nor the functionality of the SAS System was protected by copyright under the Software Directive.

The appeal was dismissed in its entirety, though Lewison LJ disagreed with certain aspects of the High Court's reasoning. The key findings of the Court of Appeal were as follows;

  • On the ideas/expression dichotomy, the Information Society Directive makes it clear that what is protected is an author's "intellectual creation". Following the CJEU's ruling in Infopaq I (Case C-5/08), "The essence of the term is that the person in question has exercised expressive and creative choices in producing the work. The more restricted the choices, the less likely it is that the product will be the intellectual creation (or the expression of the intellectual creation) of the person who produced it."
  • In relation to the Manual to Program claim, following Infopaq I, what is relevant is the form of expression of the intellectual creation of the author of the manual not the intellectual creation itself. The functionality of a computer program is not a form of expression and therefore not protected by copyright. Although it did not affect the finding that there was no infringement, it would have been preferable for Arnold J to decide it on this basis alone and he was wrong to focus on who created what in relation to the SAS Manual and the Programs. A software creator cannot obtain copyright protection for the functionality of a program indirectly via a manual which simply explains that functionality. Furthermore, the SAS System was an intellectual creation, notwithstanding that it had grown by accretion.
  • Regarding the Learning Edition claim, it was clear from the CJEU decision that even though WPL used the Learning Edition for a purpose not permitted by the terms of its licence with SAS,  WPL could still rely on Article 5(3) of the Software Directive, which grants a lawful user of a computer program the right to "observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program", and cannot be overriden by contractual provisions. Lewison LJ agreed with Arnold J that it was not a breach of the licence for WPL to authorise multiple employees to observe, test and study the function, but his reasoning behind this was that the terms of the licence indicated that WPL as a company, rather than a single employee, could constitute the Customer. As such, there was no restriction of the number of employees who could use the program, provided they did so one at a time and from a single workstation.

Overall, Lewison LJ  was openly critical of the CJEU ruling, finding that its language was "disappointingly compressed, if not obscure" and stating that it failed to answer in full the questions referred to it by the High Court, as a result of which the parties to the case could not agree what had actually been decided.

Our previous alerts on this litigation can be found here and here

The Court of Appeal's decision can be found here