On 2 May 2012, the European Court of Justice (ECJ) found that neither the functionality of a computer program, nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions, constitute a form of expression in the meaning of Article 1.2 of EU Directive 91/250 of 14 May 1991. As a result, these elements are not protected by the special copyright regime for computer programs.

SAS Institute Inc. (SAS) started legal proceedings against World Programming Ltd. (WPL) for an alleged copyright infringement of its popular statistical analysis software, Base SAS. WPL had studied a version of the Base SAS software in order to mimic its functionality, without having access to the source code. To ensure compatibility for end users, WPL used the same programming language and the same format of data files that are used for Base SAS. WPL did not reproduce the protected source code but merely imitated its functions as closely as possible. SAS claimed that WPL indirectly copied its computer programs, thereby infringing its copyright. Moreover, SAS argued that its copyright was infringed by WPL as WPL studied the functionality of the ‘Learning Edition’ in breach of the terms of the license relating to that version.

The ECJ held that the functionality of a computer program does not constitute a form of expression that may be subject of copyright protection in terms of article 1(2) of Council Directive 91/250/EEC of 14 May 1991 (the Software Directive). The same applies to the programming language itself and the format of data files used in a computer program to interpret and execute application programs written by users, which are considered to be elements of that program by means of which users exploit certain functions of that program. The ECJ ruled that copyright protection in the Software Directive only covers the individual expression of the work and leaves other authors the freedom to create similar or even identical computer programs, provided that they refrain from copying (part of) the source code and the object code. If not, it would be possible to monopolise ideas, to the detriment of technological progress and industrial development.

Finally, the ECJ stated that Article 5(3) of the Software Directive must be interpreted as meaning that a person who has obtained a copy of a computer program under a license is entitled to observe, study or test the functioning of that program so as to determine the ideas and principles of that program, provided that this person respects the terms and conditions of that license. In fact, the licensee may not even be prevented from doing so by means of contractual provisions. (PV)

The case can be found on

http://curia.europe.eu, case No. C-406/10