While being involved in interesting licensing arrangements in
TMT sector recently, I must admit that this case truly caught my
eye in the latest in Hollywood Reporter:
"When Paramount and CBS closed out 2015 with a lawsuit
over a crowdfunded Star Trek fan film titled Axanar, the two
studios probably had no idea that they were about to get mired in
an esoteric legal debate about the protectability of the Klingon
language. But that's exactly what's happened, and with the
language of digital coding hanging in the background, a California
federal judge's forthcoming decision could hold significance
— so large, in fact, that this otherwise run-of-the-mill
copyright action has now drawn an amicus brief from a language
society that quotes a Klingon proverb translated as "we
succeed together in a greater whole."
To review, after the Star Trek rights holders filed their
complaint, the defendant production company demanded particulars of
the franchise's copyrighted elements. In response, Paramount
and CBS listed many, but what drew most attention was claimed
entitlement to the Klingon language. The defendant then reached
back to a 19th century Supreme Court opinion for the proposition
that Klingon is not copyrightable as a useful
The conclusion of the brief states the following:
We had an interesting discussion in ITechLaw's
London conference on the copyright protection of programming
languages and there seems to be an interesting connections between
these two cases and therefore I wanted to write about this topic.
So main questions, can one infringe a copyright in J.R.R
Tolkien's Elf language by writing a book with that language? Or
more interesting is C++ different to Klingon language discussed
As a start I think it is needed to cite SAS v. World Programming
Ltd (WPL) - case briefly although the case itself is most likely
quite known by my learned colleagues (English High Court (Arnold
Judge), ruling in July 2010; ECJ case 406/10 (ruling on 2 May
2012), English Court of Appeal (21 November 2013).
So, the case involved the so called SAS System, a software
program enabling its users to perform certain data processing and
analysis tasks. As background, the SAS System was and is quite a
profitable one, based on roughly 35 years of experience and
development. WPL saw a market for alternative software, which
would be able to execute application programs written in the SAS
Language. For this purpose WPL had licensed the Learning Edition of
the SAS System, which it carefully studied and tested. On the basis
of its observations, it developed the so called WPS system that was
competing with the SAS System. WPL openly admitted that this was in
fact also its purpose, and did not even try to excuse itself in
respect of its purposes. What turned out to be rather crucial
to the case was that WPL had developed its system without access to
the SAS source code or object code, and furthermore, its system was
written in a different programming language. Probably the most
important merit of this competing system, and definitely one of the
reasons why SAS had such a major interest to dispute the case in
different instances, was that it enabled users of the SAS System to
change their system significantly more easily than before, as the
WPS system was able to read the SAS programming language. This
saved the customers from the trouble of rewriting their existing
applications in a different language in order to change their
systems, and thus significantly reduced to costs (and, naturally,
the threshold) of such change. The courts focused most on the
evaluation of whether the claimed components of the SAS System were
protected by copyright in the first place, and thus SAS's
claims were largely examined in this respect.
Next time we further elaborate this so stay tuned!
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The focus on the product being obvious or anticipated as at a certain date provides powerful protection and commercial certainty without conflicting with a patentee's ability to obtain patent protection.
Following the UK Government's announcement that it will ratify the Unified Patent Court Agreement, the Unitary Patent and Unified Patent Court (UPC) are expected to go live in December 2017.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).