No copyright in functionality or programming language of computer program
SAS INSTITUTE v WORLD PROGRAMMING [2012]
This case came before the High Court in 2010 and 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. The European Court of Justice (‘ECJ’) has now confirmed that there is no copyright in the functionality, programming language or format of data files of a computer program.
Facts:
We reported on this case in November 2010. The High Court’s initial ruling was referred to the legal advisor to the ECJ, the Advocate General (‘AG’), and the ECJ has now followed the AG’s views in relation to the creation of a software program by W (WPS) which produced identical functionality to a corresponding application owned and created by S.
Decision:
The three main questions decided by the ECJ were:
- Is the functionality of a computer program protected by copyright?
- No – a principle of the Software Directive (91/250/EEC) is that only the physical expression of a computer program is protected by copyright. This includes both the source code and object code versions. However, such forms of expression do not include the functionality of a computer program, its programming language or the format of data files used to exploit certain functions. The ECJ confirmed that to the extent that software programs are a reflection of certain ideas and principles, those ideas and principles are not protected.
- It went on to reiterate the AG’s opinion that to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas to the detriment of technological progress, industrial development (and competition). So the creation of WPS by W was not an infringement of the copyright in S’s software.
- Were W’s actions in breach of its licence?
- Yes - W was in breach of its licence but the right for a licensee to observe, study or test the functioning of a program to determine the ideas and principles underlying any element of that program is permitted without the copyright owner’s authorisation and cannot be prohibited by contract. So the provisions in the licence which W had breached were in fact void. W had legally obtained a licence for S’s software, it had not had access to the source code or copied any of the structural design of the source code. W had not infringed the exclusive rights of S as the owner of the copyright in the licensed software.
- Is a user manual of a computer program protected by copyright?
- Yes – provided the manual is ‘an expression of the intellectual creation of the author’, which it almost certainly always will be, it should be treated as a ‘literary work’ protected by copyright. However, the ECJ held that copyright protection did not extend to individual keywords or commands contained in the user manual. Rather it is the choice, sequence and combination of such words and commands which together amount to the necessary ‘intellectual creation’ required for protection.
Points to note:
- The ECJ’s ruling has confirmed that copyright protection is really only available to the specific source code of a software program and not to its functionality, programming languages or data file formats unless in the case of the programming language and the data file formats they represent the author’s own ‘intellectual creation’. Unfortunately the ECJ did not provide much guidance on the extent of intellectual creation required before the language/file formats will qualify for their own protection. This may become clearer when the case comes back before the English High Court. However, if the programming language and data files formats are ‘dictated by their technical function’, it would appear that the requisite intellectual creativity will not be present.
- On the other hand, software developers wishing to develop a program with equivalent functionality to an existing program will be able to do so provided they do not copy any source code or documentation in the sense of literal, ‘word for word’ reproduction of anything more than individual words or phrases.
- The ruling is consistent with previous English case law. It illustrates that the scope of copyright protection for computer software at least in the EU is quite limited. So called ‘non-textual’ copying of software, or merely imitating the functionality of a computer program in another program without having access to the source or object code, will not amount to copyright infringement.
- The High Court applied the ECJ’s ruling on the points of law to the particular facts of the dispute and the case went to the Court of Appeal in 2013 - see our report in January 2014.