Court confirms scope of software copyright

The UK High Court has dismissed a number of claims of copyright infringement brought by a leading software supplier against a rival developer, and in doing so, has clarified the extent of copyright protection for software.
In a judgment issued on Friday morning, the English High Court confirmed that copyright in a computer program:

• Does not protect the functionality of the computer program from being copied

• Does not prevent others from using the same programming language

• Does not protect data file formats (interfaces).

The judgment also clarifies the right for software licensees to observe, study and test the functioning of a program in order to determine its underlying ideas and principles. This right over-rides anything in the software licence restricting the purpose for which the licensee may use the software.   For example, a restriction against "commercial use" of the software is void, even if the licensee intends to use the knowledge that it gains from studying and testing the program to create rival software.

Background

To recap, SAS Institute, Inc. (SAS), a leading business analytical software developer brought a claim against World Programming Limited (WPL) for copyright infringement and breach of contract. WPL developed software capable of executing SAS applications. Previously, SAS customers were tied to licensing an SAS system in order to execute these applications. SAS acknowledged that WPL had not accessed or copied SAS source code to develop its software. Instead, WPL developers studied SAS manuals and a limited version of the SAS system called "Learning Edition" and used the information in these resources to replicate the functionality of SAS's system.  SAS claimed that WPL had infringed SAS copyright because WPL had:

• copied a substantial part of the functionality of the SAS system

• copied the SAS manuals into WPL's manuals

• copied SAS manuals into the source code of WPL's competing system

• indirectly copied SAS's Learning Edition.
  
  

The English High Court referred a number of fundamental questions to the Court of Justice of the European Union (CJEU) about the extent of copyright protection for computer programs. (Please see our Article on the CJEU ruling for more detail of the CJEU's findings.)   In his judgment issued on Friday, Mr Justice Arnold applied  the CJEU ruling to the facts in dispute between SAS and WPL.   SAS won its claim that WPL had copied the SAS manuals into the WPL manuals, but failed in all of its other claims.

Comment

By confirming every aspect of his first judgment, and by adopting the reasoning of the European Court in doing so, Mr. Justice Arnold has introduced a much-needed degree of certainty into an uncertain area of copyright law.  The ruling strikes a fair balance between the rights of the first software developer and a rival developer by reaffirming that the first developer may prevent the newcomer from getting a free ride from literal copying of its program manuals, while at the same time making clear that the newcomer is at liberty to copy the functionality of the first program.

Nonetheless software developers should be cautious.  Any use of rival source code is likely to be infringing; but even if a developer does not access the source code of a rival program, the use of other third party materials in the development process – for example, user manuals, specifications and detailed designs – could be infringing if these are protected by copyright or contain elements that are copyright-protected. 

Friday's judgment leaves one important question unanswered: could programming languages and data file formats be protected by copyright as distinct copyright works, rather than as part of a "computer program"?  It is disappointing perhaps that the English Court did not rule on this, but the point was not pleaded in time and it must await another day.  

Emily Parris is a Senior Associate (PSL) in the Technology and Outsourcing Group at Fieldfisher.