On 2 May 2012, the Court of Justice of the European Union ("ECJ") delivered a preliminary ruling in the case pitting SAS Institute Inc. ("SAS") against World Programming Ltd. ("WPL"). The ECJ held that neither the functionality of a computer program, nor the programming language and the format of data files used in a software program enjoy copyright protection.
SAS is a developer of analytical software which enables users to carry out data processing and analysis tasks, in particular statistical analysis. The SAS software also enables users to write and run their own application programs in order to adapt the SAS system to work with their data. The scripts for such application programs are written in a language which is peculiar to the SAS system.
WPL developed an alternative software capable of executing application programs written in the SAS language. The WPL system emulated the SAS system and would allow users to run scripts for the SAS system on the WPL system.
SAS brought an action before the High Court in the UK, in which it accused WPL of infringing its copyright as well as the terms of the SAS license. The High Court referred a number of questions to the ECJ on the interpretation of EU rules on the protection of software.
First, the ECJ was requested to determine whether the functionality, the programming language and the format of data files used in a computer program in order to exploit certain of its functions are protected under Article 1(2) of EU Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (the "Software Directive"). Article 1(2) of the Software Directive determines that the expression in any form of a computer program is protected. In contrast, the ideas and principles that underlie any element of a computer program are not protected.
According to the ECJ, neither the functionality of a computer program, nor the programming language and the format of data files used in a computer program to exploit certain of its functions constitute a form of expression of that program for the purpose of Article 1(2) of the Software Directive. Accordingly, these elements are not protected as such. However, even if the language that has been created is not protected as such, the use of the language in the source code can be protected if this use satisfies the originality requirement. The ECJ pointed out that "the SAS language and the format of SAS's data files might be protected by copyright [...] if they are their author's own intellectual creation". For instance, if a third party were to procure source code and create similar elements based on that code, this could be deemed to constitute partial reproduction prohibited under Article 4(a) of the Software Directive. It is for the national courts to determine whether this is the case based on the facts at hand. However, the ECJ pointed out that WPL did not have access to the source code of SAS's program, which seems to indicate that infringement is unlikely in the case before the High Court.
Second, the ECJ was asked whether a party that legitimately obtained a copy of a computer program is permitted to observe, study or test the functioning of that program without the copyright owner's consent. Here, SAS's license terms restricted the license to non-production purposes.
Article 5 of the Software Directive provides for exceptions to acts restricted by copyright. In particular, Article 5(3) of the Software Directive permits use of a computer program to observe, study or test the functionality without the authorisation of the copyright owner "in order to determine the ideas and principles which underlie any element of the program". The ECJ held that any contractual provisions contrary to the exceptions in Article 5(3) are null and void under Article 9(1) of the Software Directive.
The ECJ decided that "the copyright in a computer program cannot be infringed where, as in the present case, the lawful acquirer of the license did not have access to the source code of the computer program to which that license relates, but merely studied, observed and tested that program in order to reproduce its functionality in a second program".
Finally, the ECJ was asked to explain Article 2(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the "Information Society Directive"). Article 2(a) of the Information Society Directive harmonises the exclusive right to authorise or prohibit reproduction of a protected work. The referring court sought to know whether the reproduction in a computer program of certain elements described in the user manual for another computer program protected by copyright constitutes an infringement of that right.
The ECJ held that "the keywords, syntax, commands and combinations of commands, options, defaults and iterations consist of words, figures or mathematical concepts which, considered in isolation, are not, as such, an intellectual creation of the author of the computer program". However, the use of these elements can result in copyright protection: "[i]t is only through the choice, sequence and combination of those words, figures or mathematical concepts that the author may express his creativity in an original manner and achieve a result, namely the user manual for the computer program, which is an intellectual creation".
The ECJ concluded that it is for the national court to determine on the basis of the facts at hand, whether a certain reproduction of these elements constitutes a reproduction of "the expression of the intellectual creation of the author" of the user manual for the computer program. If this is the case, the reproduction will infringe the exclusive right of the copyright owner.
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