Is copying software functionality an infringement?
SAS INSTITUTE v WORLD PROGRAMMING [2010]
In short, the answer is no. Or at least it seems to be under English law. This case revisited the issue of whether producing the same functionality of another’s software by using ‘independently’ developed code would amount to copyright infringement as opposed to recreating that functionality by directly copying the source code of that software without consent.
facts:
- W created WPS, a software program which produced identical functionality to a corresponding application owned by S. It had done this deliberately to support application programs written in S’s proprietary programming language, so that S’s customers who had also written applications in that language could carry on using them, without the need for a licence from S or having to rewrite their applications in another language.
- Whilst W had studied full and training versions of the program and the accompanying manuals closely to try to emulate as much of the functionality as possible, it did not have access to S’s source code, had not copied any of the text or the structural design of the source code nor had it tried to decompile or reverse engineer the object code of S’s software. This was not disputed.
- S sued W claiming:
- (a) WPS had infringed copyright in its software;
- (b) WPS had infringed copyright in its manuals;
- (c) W's documentation and “quick reference” guides had infringed copyright in S’s manuals; and
- (d) W had breached its licence for S’s Learning Edition of the software that it used in developing WPS and had infringed its copyright in that edition.
decision:
- The Court delivered its opinions that:
- (a) copyright protection for computer programs does not extend to programming languages, interfaces or the functionality of a computer program. This is consistent with previous cases. Although there had been replication of a large part of the functionality of S’s software, this did not result in an infringement of copyright. Reproducing elements of S’s programming language in itself also did not constitute an infringement of copyright. S’s data file formats were regarded as being interfaces - information required by third parties in order to access data stored in those formats for the purposes of interoperability. Use of those file formats by W was not held to constitute an infringement of copyright;
- (b) it is not an infringement of the copyright in a manual describing the functions of a computer program to replicate those descriptions and to reproduce elements of the manual in the source code of the new program. We find this aspect of the judgment somewhat surprising since there did appear to have been some direct copying although the judge said that the “degree of resemblance should not be overstated”. What seems to have been significant was that this claim of infringement largely revolved around the reproduction of ‘mathematical formula’ which are explicitly excluded from copyright protection along with ‘ideas’;
- (c) W had substantially reproduced the language of S’s manuals in its documentation and thereby had infringed S’s copyright in its manuals. Whilst it was understood that the content and language of both manuals were extremely likely to be the same as they both described identical functionality, the degree of similarity went beyond what could just be attributed to describing identical functionality;
- (d) W’s use of S’s Learning Edition was outside the scope of its licence. However, the terms of the licence were null and void to the extent that they prohibited observing, studying and testing the software to determine the principles and ideas which underpinned any element of the program (since this is contrary to the EU Software Directive).
- However, in coming to these conclusions, the Court felt that several fundamental questions in relation to points (a), (b) and (d) should be referred to the European Court of Justice (ECJ) for confirmation of the way the Court had interpreted the law. The reference was made because much of the relevant legislation is derived from EU law. Those questions raise important and complicated issues of the nature of copyright protection for computer programs, programming languages and interfaces.
points to note:
- If the Court’s interpretation is confirmed by the ECJ, software developers wishing to develop competing technologies with equivalent functionality will continue to be able to re-create that functionality and reference the ‘target’ software and its documentation in order to do so (at least under English and European Community law). This is the case provided they do not copy any source code or documentation in the sense of literal, ‘word for word’ reproduction.
- Copyright therefore provides software developers with relatively limited protection. There is one crumb of comfort for software creators looking to protect their investment from competitors who seek to develop a ‘look-alike’ product. That 'crumb' is that the Court accepted that copyright protection is not limited to just the text of a computer program’s source code but extends to protecting its design (ie its structure, sequence and organisation).
- We will report on the outcome of the referral once the ECJ’s judgment is published. Whatever the conclusion, clear (or clearer) guidance from the ECJ will certainly be welcomed by suppliers, developers and customers in the IT sector as to the precise scope of copyright protection and whether, in any circumstances, this includes the ‘look and feel’ or functionality of a computer program, its languages or interfaces. Previous references to the ECJ of similar questions have not produced the clarity of guidance needed so it is to be hoped this may be forthcoming this time.
- The ECJ's judgment was given in 2012 and the case went to the Court of Appeal in 2013.