UK: Reference Concerning the Software Directive Sent to the ECJ

Last Updated: 25 August 2010
Article by Susan Barty

In the recent case of SAS Institute Inc v World Programming Ltd [2010] EWHC 1829 (Ch), the High Court has provisionally ruled that World Programming Limited did not infringe copyright in software by developing a program which emulated its functionality.  Mr Justice Arnold has, however, asked the European Court of Justice for clarification on his interpretation of the laws based on the EU's Software Directive (95/250/EEC).

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The SAS Institute Inc ("SASI") software system is an integrated set of programs which enables users to perform a wide range of data-processing and statistical analysis tasks. At the core of the system is software which enables users to write and run applications written in SASI's language in order to manipulate their data. This software's functionality can be extended by using additional components but anyone wishing to run their existing applications or create new ones requires a licence to the SASI components.

World Programming Ltd ("WPL") developed the World Programming System ("WPS") which emulated much of the functionality of SASI's components and enabled former SASI users to execute programs written in SASI's language without continuing to pay SASI's licence fees. WPL also created a WPS manual describing the functionality of various elements by reference to diagrams and quick reference guides listing elements of the SASI language with an indication of whether the current edition of WPS supported it.

SASI commenced proceedings in 2009 alleging WPL's infringement of copyright in its software and manuals as well as breach of SASI's licence terms.


In considering SASI's allegations Mr Justice Arnold referred to the case of Navitaire v easyJet and BulletProof which had previously concluded that it was not an infringement of the copyright in the source code of a computer program to study how the program functions and to develop a program emulating that functionality.

In the current case, there was no suggestion that WPL had access to the source code of the SASI components nor that it copied any of the text or structural design of the source code of the system. On the assumption that Mr Justice Pumfrey's interpretation of Article 1(2) of the Software Directive in Navitaire was correct, Mr Justice Arnold ruled that WPL had not infringed copyright in the SASI components by producing the WPS. Whilst the source code of the SASI system was protected by copyright as a literary work, it did not prevent WPL writing software that replicated the functions of the SASI software, however complex and at whatever level of detail.

In Navitaire, Mr Justice Pumfrey held that the EU's Software Directive did not provide for protection by copyright of programming languages, interfaces or functionality. Although Mr Justice Arnold did not agree with SASI's submission that this was an incorrect interpretation of the Directive, he felt that there was uncertainty surrounding how broadly the concept of a programming language should be interpreted in the context of this case and that the level of doubt was sufficient for the European Court of Justice ("ECJ") to be asked to clarify the legal position. In his judgment, Mr Justice Arnold was quite clear that his decision would have been appealed by SASI had he not himself referred various matters to the ECJ.

Although the precise wording of the referred questions surrounding the controversial issue of the scope of copyright protection for computer software in the Software Directive have yet to be determined, it is thought that they will address issues including whether programming languages, interfaces and functional aspects of software are excluded from protection under Article 1(2) of the Software Directive and the extent of the exclusion from infringement for acts of observation and testing under Article 5(3).

In relation to the issue of the infringement of copyright in the documentation and manuals outlining how the software should be used, Mr Justice Arnold ruled that WPL had infringed some of SASI's copyright in these documents.

Additionally, Mr Justice Arnold definitively ruled that WPL's development of the software was outside the scope of its licence from SASI and did not infringe it.


The software industry will be watching the progress of this reference to the ECJ closely, especially in light of the fact that previous attempts to refer questions concerning the Directive to the ECJ have been unsuccessful. Understandably, the issue as to whether or not it is an infringement of copyright in a computer program to replicate its functions without copying the source code is of great interest to owners of copyright in computer programs and those who replicate the functions of currently marketed software.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 24/08/2010.

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