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European court advisor slams software copyrights

SAS loses round in World Programming case

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A senior court advisor has issued an opinion to the European Court of Justice that software functions cannot be copyrighted.

"If it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development," wrote advocate-general Yves Bot in his opinion, as quoted by Reuters.

Bot's opinion was in reference to the long-running suit brought by the US-based business-analytics software company SAS Institute against the UK's World Programming Ltd, an SAS toolmaker.

The suit alleges that World Programming infringed SAS software copyrights and copyrighted manuals, creating "non-literal" copies of SAS analytical software.

Last July, the High Court of England and Wales ruled against SAS, but kicked the case up to the European Court of Justice for further review. As The Reg noted at the time of that decision, although the High Court acknowledged that World Programming's code emulated the functionality of SAS code, doing so was not an infringement of copyright.

"There is no suggestion that in doing so WPL had access to the source code of the SAS Components or that WPL have copied any of the text of the source code of the SAS Components or that WPL have copied any of the structural design of the source code of the SAS Components," the presiding High Court judge wrote in his ruling.

As explained by the IP watchers at New Legal Review, the EU Software Directive supports copyright protection for "expression in any form of a computer program", but also notes that "ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright".

Advocate-general Bot's opinion appears to be in line with the High Court of England and Wales' interpretation of that second statement from the EU Software Directive – that software functionality cannot be copyrighted.

We will discover if the European Court of Justice concurs when it issues its decision next year. ®

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