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IP Cases & Commentary – Details

29 November 2011

SAS Institute Inc v World Programming - Advocate General Issues Opinion

The Advocate General Bot’s Opinion in the SAS Institute Inc v World Programming Ltd case was issued on 29 November 2011. This is a reference for a preliminary ruling from the High Court of England and Wales, where Arnold J asked the Court of Justice of the European Union (CJEU) a number of questions regarding the scope of protection conferred by copyright on computer programs under Directive 91/250 EEC and Directive 2001/29/EC.

The key question referred to the Court is whether it is an infringement of the copyright in a computer program to create another computer program replicating the functions of the former program, without accessing the source code either directly or by way of decompilation of the object code.

AG Bot noted that, whilst the protection of a computer program is not confined to the literal elements of that program (ie, source code and object code), but extends to any other element expressing the creativity of its author, functionalities cannot as such be protected by copyright. This is because functionalities are "similar to ideas", there are "many means of achieving the concrete expression of those functionalities" and protecting them would be tantamount to "monopolising ideas". Having said that, if one reproduces a substantial part of the expression of functionalities of a computer program, this may constitute copyright infringement. This can extend beyond source code alone but can include, eg, the style in which a program is written.

Equally, with regard to programming language, AG Bot concluded that it cannot be regarded as the expression of a computer program, as it is a "functional element which allows instructions to be given to the computer", ie,"‘the means which permits expression to be given, not the expression itself". Conversely, the source code written in programming language will be eligible for copyright protection.

Arnold J also asked whether, under articles 1(2) and (6) of Directive 91/250, a licensee is entitled to perform an act of decompilation in order to achieve interoperability between two computer programs and whether, in doing so, the licensee can recopy the code of the licensed computer program in its own program. AG Bot concluded that "it is not regarded as an act subject to authorisation for a licensee to reproduce a code or to translate the form of the code of a data file format so as to be able to write, in his own computer program, a source code which reads and writes that file format, provided that that act is absolutely indispensable for the purposes of obtaining the information necessary to achieve interoperability between the elements of different programs. That act must not have the effect of enabling the licensee to recopy the code of the computer program in his own program".

The Court was also asked to define the scope of the exception pursuant to Article 5(3) of Directive 91/250, whereby a person having the right to use a copy of a computer program (eg, a licensee) is to be entitled, without authorisation of the copyright owner, to observe, study or test the functioning of the program in order to determine the ideas and principles underlying it, providing that this is done while performing any of the acts of loading, displaying, running, transmitting or storing the program [which the person having the right] is entitled to do. AG Bot concluded that "acts of observing, studying or testing the functioning of a computer program" under Article 5(3) must not have the effect of enabling the person having a right to use a copy of the program to access information which is protected by copyright, such as the source code or the object code, if that person has not obtained the authorisation from the rightholder and its acts do not relate to the ‘loading, displaying, running, transmitting or storing’ necessary to use the computer program.

Finally, the Court was asked whether, under Article 2(a) of Directive 2001/29/EC, it is an infringement to reproduce in a computer program or a user manual certain elements described in the user manual for another computer. AG Bot opined that such reproduction may constitute an infringement of the copyright in the manual if the elements reproduced in this way are the expression of their author’s own intellectual creation, which is a question to be determined by the national court.

We look forward to reading the Court’s judgment and seeing whether it will follow AG Bot’s conclusions.

Useful links

Full text of Advocate General's Opinion C-406/10

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