Keyboard with one key coloured pink and labelled "All rights reserved" - Intellectual property lawyers

How far does copyright protect software

The Court endorses the approach of the judge in Navitaire Inc v easyJet.

The Computer Programs Directive 2009 (“the Directive”) requires Members States to protect computer programs (including any preparatory design material) by copyright, as literary works. The Directive makes it clear that such protection extends to the expression of a computer program only, and not the ideas and principles underlying it.

A copyright proprietor in a computer program can prevent the permanent or temporary reproduction, translation, adaption, arrangement and any other alteration of that computer program. Additionally, it has the right to prevent the distribution of that computer program.

There are some important defences to the exclusive rights referred to above. In particular, in the absence of specific contractual provisions, the acts of reproduction, translation, adaption, arrangement and alteration of a computer program do not require authorisation where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose including error correction. A lawful user of a computer program can make a back-up copy of it and this cannot be restricted in contract. Further, a person having a right to use a copy of a computer program shall be entitled, without authorisation of the right holder, to observe, study, or test the functioning of the program in order to determine the ideas and principles which underlie the program.

There are also specific laws enabling the decompilation of software to enable the interoperability of an independently created computer program provided certain conditions are met.

In this case, the claimant, SAS had developed some analytical software known as the SAS System. The SAS System is an integrated set of programs which enables users to carry out a wide range of data processing and analysis tasks, particularly statistical analysis. The core component of the SAS System is Base SAS, which allows users to write and run application programs, written in SAS language, in order to manipulate their data. The functionality of Base SAS could be extended by the use of additional components referred to as SAS Components.

The SAS System had been in use for some 35 years, generating income of more than £2 billion.

Over the years, SAS’s customers had created thousands of apps in the SAS language. Whilst there were other statistical software programs available to customers, it would have been prohibitively expensive and time-consuming for a customer to rewrite all its applications in a different programming language. Therefore, in order to run existing applications written in SAS language or create new ones, SAS’s customers had to maintain a licence with SAS to use the SAS System.

The defendant, World Programming Limited (“WPL”), created its own World Programming System (the “WPS System”) which emulated much of the SAS System’s functionality and could execute programs written in SAS language. WPL had also produced a WPS manual which described the functionality of the WPS System and four quick-reference guides which listed the elements of the SAS System which the WPS System supported. WPL had no access to the source code of the SAS System in order to create its WPS System. Rather it had used manuals produced for the SAS System, which set out the functionality of the SAS System, and also observed SAS’s Learning Edition which instructed customers how to use the SAS System and then created its own applications.

SAS claimed that WPL had infringed its copyright by copying its SAS manuals, SAS Learning Edition, and the SAS System when creating its WPS System and manuals. It further claimed that WPL was in breach of the terms of its licence to use SAS’s Learning Edition product.

In July 2010, the High Court referred a series of questions to the Court of Justice of the European Union (“CJEU”) whilst expressing its preliminary view that virtually all of SAS’s claims should be rejected. It did, however, find that the copyright in the SAS manuals had been infringed by the creation of the WPS manual. Following the CJEU’s ruling on these questions in 2012, the case returned to the High Court to be decided.

The CJEU held that:

  1. The functionality of a computer program, the programming language and the format of data files used in a computer program do not constitute a form of expression of that program.
  2. A third party would infringe copyright if it reproduced part of the source code or object code relating to the programming language or format of data in its own computer program. As SAS did not have access to the source code or object code it could not infringe the copyright.
  3. The owner of copyright in a computer program cannot prevent, by relying on the licence agreement, a person who has obtained that licence from determining the ideas and principles which underlie all the elements of that program where that person carries on acts which the licence permits and the acts of loading and running are necessary for the use of the computer program.
  4. A third party can infringe the copyright in a manual provided that what is taken is the expression of the intellectual creation of the author of the manual. In the present case, the keywords, syntax, commands and combination of commands, options, defaults and iterations are not an intellectual creation of the author of the computer program.

In January 2013, after considering the CJEU decision, the High Court ruled as follows:

  1. Copyright in the computer program (namely the SAS System) – WPL did not infringe this as copyright in a computer program does not protect the programming language in which it is written, its interfaces (i.e. data file formats) or its functionality. WPL did not copy the computer program as it had no access to the source or object codes. The fact that the functionality was the same did not alter this conclusion.
  2. Copyright in the programming language and SAS data files – the Defendant sought to argue that the programming language and the SAS data files could be protected as a separate copyright work under the Information Society Directive rather than as a computer program. The judge refused to accept this argument and, in any event, did not allow the Claimant to amend its particulars of claim so that these arguments could be run. He did say that in light of certain recent judgments it may be arguable that a programming language could be a separate copyright work. However, in his view, it could not. The judge explained that language is not a work as it is the material from which works are created. Language is a system of rules for the generation and recognition of meaningful statements.
  3. Copyright in the SAS manuals – WPL had not infringed the copyright in SAS’s manuals by reproducing compilations of formulae, keywords, default values or comments from the manuals during the course of producing or testing the WPS System as they were produced by the authors of the SAS System and not the authors of the manuals. The copyright was therefore not infringed by producing or testing the WPS System. (That said, in the original decision, the judge did find that WPS infringed SAS’s rights in the expression of the SAS Manuals when it created the WPL Manuals).
  4. Copyright in the SAS Learning Edition – SAS argued that WPL had breached the terms of the relevant licence by allowing more than one employee to use the Learning Edition and by using the program for purposes that extended beyond the scope of the licence. The Court did not accept this as it did not matter which employees used the work as it was still originally obtained under licence and WPL was entitled, through any employee, to observe, study and test the functioning of the Learning Edition in order to determine the underlying ideas and principles.

This decision reinforces the established position that copyright seeks to protect the form of expression of an idea and not the bare idea as such. The Court confirmed that the CJEU’s ruling is consistent with the UK’s approach to date – namely, that it is not an infringement of the copyright in a computer program to replicate its functions without copying its source code or design. Practically speaking, whilst SAS showed that its copyright was infringed by the creation of the WPL Guides, this was a hollow victory as it lost on all the important points.

Roy Crozier, a partner in the Intellectual Property Group said, “Copyright provides only limited protection to a computer program as it is difficult to protect the functionality of the program itself. Computer programmers should therefore consider exploring if it would be appropriate to file a patent for the software, as this will protect the ideas and functionality. However, obtaining patent protection for software has its challenges too”.