Copyright Protection For Functionality Of A Computer Program? The CJEU Rules In The Clone Wars

SAS Institute Inc v World Programming Ltd, Case C-406/10, 2 May 2012

In a ruling which is not surprising, the CJEU has confirmed that neither the functionality of a computer program, its programming language nor the format of its data files are protected by copyright under Article 1(2) of the Software Directive. However, the CJEU makes clear that the reproduction of certain elements described in a user manual relating to a program is capable of constituting infringement where the reproduction constitutes the expression of the intellectual creation of the author of the user manual.

SAS Institute Inc. ("SAS Institute") developed analytical software known as SAS (the "SAS System"), an integrated set of programs which enable users to carry out data processing and analysis tasks, including statistical analysis. The core component of the SAS System, Base SAS, enables users to write and run application programs to manipulate data. Such applications are written in a language known as SAS Language. The functionality of Base SAS could be extended by the use of additional components, three of which were relevant to the main proceedings (SAS/ACCESS, SAS/GRAPH and SAS/STAT, referred to together with Base SAS as 'the SAS components').

World Programming Limited ("WPL") created an alternative computer program, the World Programming System (the "WPL System"), which enabled users to run application programs written in SAS language. WPL's intention was to emulate much of the functionality of the SAS components as closely as possible, but WPL did not have access to the claimant's source codes. WPL wanted its customers' application programs to run in the same way on the WPL System as on the SAS components.

SAS Institute sought an order that WPL's actions represented an infringement of its copyright in its computer programs. The English court has previously ruled that it was not an infringement of the copyright in the source code of a computer program for a competitor of the right owner to study how the program functions and then to write its own program to emulate that functionality. (See Navitaire Inc v Easyjet Airline Company (1) and Bulletproof Inc (2) [2004] EWHC 1725 (Ch), 30 July 2004.)

However, SAS Institute challenged that approach and claimed that WPL:

copied the manuals for the SAS System (the "SAS Manuals") published by SAS Institute when creating the WPL System, thereby infringing copyright in the SAS Manuals; in so doing, indirectly copied the...