The dispute between SAS Institute Inc v World Programming Limited looks to be nearing an end following Attorney General Bot's preliminary opinion.
Central to the dispute is SAS's contention that WPL had infringed its copyright by developing scripts which mimicked the functionality of SAS's own - WPL's scripts enabled SAS users to use SAS software without a SAS scripts' licence. There was no suggestion WPL had accessed SAS's source code or decompiled its object code to create the "offending" scripts.
The High Court referred to the issue to the European Court of Justice (CJEU) as it concerned the scope of EU copyright protection in regards to interoperability. The CJEU, in turn, looked to the AG for an opinion.
That opinion includes useful guidance and good news for developers designing software to be interoperable with other programs in that:
- Neither program functionality nor a programming language are, as such, eligible for copyright protection.
- Subject to two conditions, a licensee (such as WPL) may, without the author's (read, SAS) authorisation, reproduce the source code or translate the form of the code of a data format in that program so as to write, in the licensees' own program, a source code which reads and writes that data format.
The two conditions are:
(i) the reproduction must be absolutely indispensable for the purposes of obtaining the information necessary to achieve interoperability between the elements of the various programs; and
(ii) the reproduction must not have the effect of enabling the licensee to recopy the code of the original program in the licensee's own program.
Before developers get too carried away, there still remains considerable room to infringe copyright when seeking to reproduce the functionality of another program. This may, for example, happen where a developer copies elements of another program's build, including the programming steps taken and the way in which those steps are expressed to deliver efficiency and speed.
Of course, the AG's opinion is just that: the CJEU may take an entirely different view when its delivers its decision, expected in early 2012.
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.
