Software developers beware
This article was included in the winter 2011/12 issue of snIPpets - the intellectual property newsletter.
Advocate General (AG) Bot issued his Opinion in November on various questions referred to the Court of Justice of the EU (CJEU) by the English High Court seeking clarification on the scope of copyright protection for computer programs. While the AG has remained largely consistent with previous leading UK judgments (Navitaire and Nova Productions), his non-binding Opinion invites the CJEU to take those decisions one step further by suggesting that the protection of a computer program is not confined to the literal elements of that program (such as the source code and object code), but extends to other elements which express the author's own intellectual creation (such as a programmer's preparatory design work including a structure or organisational chart). This means that developers will only be able to replicate the function or 'look and feel' of an existing computer program, as long as they do not copy any of the underlying source or object codes or any other elements which are copyright protected, such as the preparatory design material.
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 the SAS system.
SAS sought to overturn the previous UK rulings on the basis of what SAS argued were inaccurate interpretations of the EU Software and Information Society Directives. Although Arnold J largely agreed with the previous decisions, he felt that there was sufficient room for doubt as to the correct interpretation of the EU legislation to make it necessary to seek clarification from the CJEU. He therefore referred 9 questions to the CJEU.
What the AG said
The AG reconfirmed the general principle that protection under EU copyright law applies to the expression, in any form, of a computer program but not to the ideas and principles which underlie any element of a computer program. His general view was that protection covers the literal elements of a computer program such as the source code and object code and any other elements of the program which involve the author expressing his own intellectual creation. Those 'other elements' might include a programmer's preparatory design work where it leads to the creation of a program and the arrangement of formulae and algorithms.
The AG agreed with previous judgments that there is no copyright in the functionalities of a computer program because they are similar to ideas and it is perfectly legitimate for computer programs to be developed which offer the same functionalities (he used the example of a computer program for airline tickets). He went on to say, however, that copying the functionality could give rise to infringement where the reproduction includes elements that represent the author's own intellectual creation, for example if they are arranged in a particular manner worthy of copyright protection.
The AG confirmed that programming languages are not capable of copyright protection. The AG said that programming language is a functional element which allows instructions to be given to a computer and is made up of words and characters which everyone knows (similar to the language used by an author in a novel) and which lack any originality, so cannot be protected by copyright.
Copying from a user manual
The AG said that using the manual for an existing computer program as a specification to create a new program that performs the same functions and for a new manual could also amount to infringement. In this case, WPL had taken the keywords, syntax, commands and combinations of commands, options, defaults and iterations from the SAS manual in order to reproduce them in its computer program and its own user manual. The AG said that ordinarily, these elements would not be eligible for copyright protection because they were just 'ideas, procedures, methods of operation and mathematical concepts', but the choice, sequence and combination of these elements could amount to the expression of the author's own intellectual creation and could therefore be protected by copyright.
The AG departed from the current UK position on copyright and interfaces. The AG's said that interfaces are eligible for copyright protection. The interface must constitute a substantial part of the program as a whole, and satisfy the "intellectual creation" threshold. This part of the AG's opinion could present obstacles to developers who rely on being able to manipulate interface information freely to create interoperable products. Developers can still rely on rights in the EU Software Directive to decompile a program to obtain "interoperability" information under certain circumstances (the so-called "reverse engineering" defence), but the AG confirmed that the decompilation right is narrow.
The AG's Opinion has provided some much needed clarity on the scope of protection for computer programs under EU law. If the CJEU follows the AG opinion (which it does in 80% of cases), software developers (in the UK at least) may find that they lose some of the shelter they enjoyed from earlier UK decisions (Navitaire and Nova Productions) and current, commonly used software development practices could be found to constitute infringement.
While there is still clearly an opportunity for competing software developers to enter the market, they will not be able to presume that replicating the functionality of a program will not result in copyright infringement just because they do not copy the source code. Developers may find themselves caught by the law of copyright if, in replicating the functionality, they include other elements which are copyright protected. Software developers will therefore need to proceed with caution when creating new computer programs based on existing ones.
After the CJEU ruling (expected some time next year), it will then be for the national court to assess exactly what SAS elements WPL has copied and whether they constitute expressions of the author's own intellectual creation or are simply ideas which are not protected by copyright and can be freely used (unless other legal regimes such as the law of confidence prohibit them from being used).
Rebecca Pakenham-Walsh, Senior Associate (PSL), IP Protection and IP Enforcement and Litigation at Fieldfisher.