Euro beaks mull copyright of software features

Can what a program does be protected?

The European Court of Justice (ECJ) should apply copyright protection to the functions of computer programs, a software company has told it, according to media reports.

SAS Institute Inc claims that World Programming Ltd infringed its copyrights by developing a rival software program it designed using information published in manuals for SAS software. It wants the ECJ to apply copyright protections to the functions of computer programs.

"[Exempting computer program functions from copyright protection would] deprive the copyright owner of a significant part of the value of the protection given to computer programs," SAS's lawyer said, according to a report by news agency Bloomberg.

"There is no warrant for excluding that type of intellectual creativity," he said.

"So detailed are the SAS manuals in describing the contents of the SAS System that they were effectively used by [World Programming] as the preparatory design material which enabled [it] to create its competing software,” he said.

World Programming claimed that applying copyright protection to the functions of computer programs would adversely affect competition and innovation in the industry, according to Bloomberg.

"The extension of copyright to cover such a situation would have greatly detrimental effects on competition, and would prevent the development of new and better ways of achieving those functions," the lawyer for World Programming told the ECJ, according to the Bloomberg report.

"[World Programming] did not have access and did not copy either any of the text of the source code of the SAS program, or importantly, any of its structural design,” he said.

The ECJ is hearing the case after a UK High Court judge referred questions to it about how EU law should be interpreted. The judge provisionally ruled in favour of World Programming but acknowledged that there was sufficient doubt over how laws set out in the EU's Software Directive and Information Society Directive should be applied to merit a referral to the ECJ.

Under the Software Directive copyright protection is given to "the expression in any form of a computer program" but does not apply to "ideas and principles which underlie any element of a computer program, including those which underlie its interfaces".

The Directive also states that "the person having a right to use a copy of a computer program shall be entitled, without the authorisation of the rightholder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do".

The Information Society Directive sets out rules on reproduction rights. Under the Directive EU member states "shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part for authors, of their works".

Kim Walker, a copyright law expert at Pinsent Masons, the law firm behind Out-Law.com, said that he does not expect the ECJ to extend copyright protection to the functions of computer programs. However, Walker said that it may be possible for the ECJ to offer the High Court guidance on whether, in this case, SAS' manuals were sufficiently detailed that using them as a guide to how to code a similar product was an infringement of copyright.

"If the manuals are, as SAS apparently claim, so detailed that they contain an expression of the way SAS's software product is put together and, in this case, give the World Programming designers sufficient insight into how SAS' software has been designed, I can see the ECJ allowing the High Court to find in favour of SAS on the particular facts," Walker said.

"I do not think it will go as far as to offer protection to the functions of computer programs," he said.

In its ruling the High Court said that while copyright law protected the source code of software programs, it did not prevent one company writing software that copied the way another program worked.

Mr Justice Arnold had considered a case involving budget airline easyJet and developer Navitaire when coming to his provisional ruling. In that case the judge ruled that the EU's Software Directive meant that copyright in computer programs did not protect programming languages, interfaces or functionality.

In the easyJet judgment in 2004 Mr Justice Pumfrey ruled that the EU's Software Directive meant that copyright in computer programs did not protect programming languages, interfaces or functionality. SAS argued that this was an incorrect interpretation of the Directive. Mr Justice Arnold did not agree but said that there was enough doubt, as expressed by Mr Justice Pumfrey in 2004, that the ECJ should be asked to clarify the law.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

Sponsored: 10 ways wire data helps conquer IT complexity