SAS Institute certainly hoped so, as it wanted to prevent World Programming from selling a product called WPS, which emulated much of the functionality of SAS Institute’s SAS language. The question was answered on a preliminary basis in the English Chancery court, then found its way to the European Court of Justice, and was ultimately remitted back to England for Arnold J to adjudicate: SAS Institute Inc v World Programming Ltd, [2013] EWHC 69 (Ch).

Justice Arnold concluded that a computer language is not a ‘work’ for copyright purposes; and not even under the ‘expansive and open-ended’ category of literary and artistic works, which nevertheless has its limits (sound recordings or broadcasts are outside it, for example). SAS Institute was itself unable to identify what kind of ‘work’ the SAS language might be. The judge drew an analogy with traditional languages, which can be fixed in copyrightable works like dictionaries or grammars, but which are not themselves protectable forms of intellectual property. Nor was it a ‘compilation’. It was, however, open to argument that SAS Institute’s data file formats could be intellectual creations in which there could be copyright, provided there was an element of creativity or ‘personal touch’ in their creation – but the point had not been fully pleaded. As a result, World Programming had not infringed SAS Institute’s copyright in the components of the SAS language. But it had infringed copyright in the SAS manuals which explained how to use the language, the content of which were substantially reproduced in the WPS guides produced by World Programming.

[Link available here].