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A free reign for functionality

16 August 2010

Software developers and owners should be aware of the developing case law concerning the scope of copyright protection for computer programs.

The view of the English Courts has been that copying the functionality of a program which does not involve the copying of source code or graphics does not amount to infringement of the copyright in the program (see the cases of Navitaire and Nova). In the recent case of SAS Institute Inc v World Programming Ltd before Mr Justice Arnold, the scope of copyright protection for computer programs has come under scrutiny once again. What makes this case interesting is that whilst Mr Justice Arnolds preliminary ruling followed the previous court decisions, he acknowledged that guidance on a number of issues was required from the European Court of Justice (ECJ) in order to determine the case. Understanding the scope of copyright protection afforded to programs is key, both to software owners and to those looking to replicate existing software.

Facts in brief

SAS Institute (SAS) developed analytical software consisting of an integrated set of programs enabling users to carry out various data processing and analysis tasks including writing and running application programs to manipulate data. These applications are written in the specific SAS Language. In order for SAS customers to continue to run their application programs written in the SAS Language, or to create new ones, they must continue to license the SAS System. If a customer changes to an alternative suppliers software it must re-write its existing applications into a different non SAS Language.

World Programming Limited (WPL) saw an opportunity and developed software which could execute applications written in the SAS Language (the World Programming System or WPS). In order to ensure that customers application programs functioned in the same manner when run on the WPS as on the SAS System, WPL sought to emulate the functionality of the SAS System. There was no suggestion that WPL had access to or copied any of the source code of the SAS System.

SAS claimed (amongst other things) that:

1. by copying the SAS manuals when creating WPS, WPL indirectly copied and infringed the copyright in the SAS System

2. WPL copied and infringed the copyright in its SAS System manuals when creating WPS

3. WPL copied and infringed the copyright in the SAS manuals when creating its own WPS manual and guides

Decision highlights

1. Infringement of the SAS System:

Whilst the Judge agreed with Pumfrey Js interpretation of Article 1(2) of the Software Directive in the Navitaire case - that the copyright in computer programs does not protect the programming languages, interfaces and functions of computer programs - he considered that clarification from the ECJ on these points was necessary.

The Judge concluded that if Pumfrey Js interpretation of Article 1(2) was correct then WPL had not infringed the copyright in the SAS System by producing WPS because:

  • replicating a large part of the functionality of the SAS System does not in itself constitute copyright infringement and WPL had not copied any of the design or source code of the SAS System
  • the SAS Language (including the syntax) was a programming language and WPLs reproduction of elements of it did not therefore constitute copyright infringement
  • the SAS data file formats were interfaces and the reading and writing of files in this format by WPS did not constitute copyright infringement
  • the replicated elements of SAS System which went beyond what was strictly necessary to reproduce functionality of the SAS System did not amount to infringement: the principle that functionality is not protected by copyright is not confined to that which is strictly necessary to reproduce. Alternatively, WPL had not reproduced a substantial part of the source code once the replication of the functionality of the SAS System was discounted.

2. Infringement of the SAS manuals by production of WPS:

The Judge held that assuming Pumfrey Js interpretation of Article 2(1) was correct i.e. that replicating the functions of a computer program without copying its source code or design is not infringement of the copyright in the program, then it follows that it is not infringement of the copyright in the manuals describing those functions to use the manual as a specification of the functions to be replicated and, to that extent, to reproduce the manual in the source code of the new program. However, the Judge considered that the interpretation of Article 2(a) of the Information Society Directive governing this particular point was not clear and therefore guidance should be sought.

3. Infringement of the SAS manuals by production of WPL documents:

The Judge highlighted that for there to be infringement of copyright in the manuals there must be copying of the language and not just the ideas expressed in the manuals. The Judge concluded that WPL had gone further than just copying ideas and had substantially reproduced the language in the manuals which amounted to copyright infringement. The WPL guides however, were not found to be infringing.


If the Judges interpretation is followed by the ECJ then it means that emulating the functionality and outputs of computer programs without copying the source code or graphics will be legitimate and not infringe the copyright in the computer program. Claims will have to be based on the copying of other elements of the program such as screen displays. Whilst this approach may be difficult for software owners to accept from an ownership perspective, it does provide the freedom to develop competing software so long as the source code and graphics are not copied.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Declan Cushley

Declan Cushley

Partner and Head of IP and Commercial Group

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