UK: A Matter Of Expression: The ECJ Decides That Non-Textual Copying Of The Functionality Of Software Does Not Infringe Copyright

Last Updated: 24 July 2012

On 2 May 2012 the European Court of Justice (ECJ) delivered its landmark decision in SAS Institute Inc v World Programming Ltd1.  The decision provides important clarification of the scope of copyright protection available for computer programs in relation to non-textual copying of functionality of software under the Software Directive. Software copyright owners may find themselves without copyright protection from rival developers. However, in a significant caveat to its decision, the court might have thrown them a lifeline if they are willing to think creatively.

 The facts

The claimant, SAS Institute Inc (SAS), developed a set of computer programs, the core component of which enables users to write and run their own application programs in a specific language (SAS Language) and enable compatibility of the user's own data with the SAS software.

The defendant, World Programming Limited (WPL), produced a software product (World Programming System) capable of executing application programs written in SAS Language.

WPL's programs tried to emulate the functionality of the SAS programs, however it was accepted that at no point in the development process did WPL have access to SAS's object or source codes, which was to prove significant.

SAS claimed that:

 WPL had copied the manuals for the SAS software when creating the World Programming System, thereby infringing its copyright in those manuals;

  • in so doing, WPL had indirectly copied SAS's software, thereby infringing its copyright in the software;
  • when developing its software, WPL had used a version of SAS's software known as the 'Learning Edition', in breach of the terms of its user licence, thereby infringing SAS's copyright; and
  • WPL had infringed the copyright in SAS's manuals in creating its own manual.

In his judgment Mr Justice Arnold of the English High Court rejected most of SAS's claims but decided to refer questions to the ECJ on how Council Directive 91/250/EEC (now codified by Directive 2009/24/EC) (the Software Directive) and Council Directive 2001/29/EC (the Information Society Directive) ought to be interpreted.

 The decision of the ECJ

The court construed Article 1(2) of the Software Directive to mean that neither the functionality of a computer program nor the programming language nor the format of data files used to exploit the functions of that program constitutes a form of expression of that program capable of attracting copyright protection under the Directive.  This is consistent with the court's recent decision in BSA2 , in which it interpreted Article 1(2) to mean that only source and object codes constituted the expression of a computer program because they were capable of reproduction in different computer languages. The Software Directive's protection of expression in any form of a computer program does not extend to the underlying ideas and principles of that computer program.

  • The court construed Article 5(3) of the Software Directive to mean that a person who has obtained a copy of a computer program under a licence is entitled, without further authorisation, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of that program, provided that the person carries out acts covered by that licence and does not infringe the copyright owner's exclusive rights. Additionally the court found that contract terms contrary to the exceptions provided for in Article 5(3) were void under Article 9(1). This included the terms of the SAS's licence that limited the licence to non-production purposes.
  • The court construed Article 2(a) of the Information Society Directive to mean that the reproduction of certain elements described in the user manual for another computer program was capable of constituting copyright infringement in the latter manual if a national court decided that the reproduction constitutes the expression of the intellectual creation of the author of the latter manual (Infopaq). On the facts, the only expressions of intellectual creativity (i.e. the structure of the content) in SAS's manuals were not, in isolation, considered intellectual creations of the author.


This decision is good news for competitors who are looking to develop programs with the same functionality as existing products. Software developers previously restricted by prohibitions in user licences will welcome the decision that contractual provisions prohibiting non-textual copying of functionality of software (provided that the user does not infringe the copyright owner's exclusive rights) appear to be void.

The decision, although in line with recent UK judgments, is disappointing for those authors of software hoping for greater protection for their products.

It will now be easier for competitors to use existing products to design alternative software, in an attempt by the ECJ to prevent monopolisation of ideas.

For software developers prepared to think creatively though there are still means of protection available. For example, the court's caveat that a subsequent developer could infringe the copyright in an existing program if he copies a program using the copyright-protected parts of the existing program (i.e. the source and object codes). Developers could use encryption to make it more difficult to observe, study and test a program's functionality without accessing the all-important source and object codes. Further protection exists under the Information Society Directive.  The court continues to stress that individual elements which do not enjoy protection as computer programs, such as program languages and data files, could be protected as literary works in their own right under the Information Society Directive as long as they can be demonstrated to be their author's own intellectual creation.

In relation to user manuals, authors of source and object codes could include parts of their codes when compiling their own manuals, therefore attracting protection for both the content and the arrangement of the manual. However, exposure of commercially-valuable codes may not prove attractive, so authors must ensure that their manuals are, at the very least, creatively arranged!


1 The ECJ decision in SAS Institute Inc v World Programming Ltd (Case C-406/10) is available at

 2 The ECJ decision in Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury Case C-393/09 is available at

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.

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