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Computer program functionality not copyrightable but programming languages and file formats may be protected by the Copyright Directive, ECJ rules

The way a computer program functions is not copyrightable, the European Court of Justice (ECJ) has ruled. 03 May 2012

The Court said, though, that programming languages and file formats may be subject to copyright protection under the EU's Copyright Directive even though they do not form 'expressions' of computer programs protected by the EU's Software Directive.

The Court said that the functionality of a computer program and a programming language and file format used to enable its operation do not of themselves form an expression of the computer program. The Software Directive's protection applies to the expression of a computer program 'in any form.' It is not however possible to copyright ideas, only the expressions of those ideas.

"[The EU's Computer Programs Directive] must be interpreted as meaning that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive," the ECJ said in its ruling

The ECJ also determined that companies that buy a licence for a computer program can legitimately "observe, study or test" how that program functions, without the rights holders' permission, in order to "determine the ideas and principles which underlie any element of the program" under certain conditions.

''The owner of the copyright in a computer program may not prevent, by relying on the licensing agreement, the person who has obtained that licence from determining the ideas and principles which underlie all the elements of that program in the case where that person carries out acts which that licence permits him to perform and the acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner in that program.'' it said.

However, the ECJ admitted that it was a "possibility" that a company, World Programming Limited (WPL), which developed its own software based on instructions for a copyright-protected computer program contained in rival SAS Institute's (SAS) user manual may have infringed on its SAS' rights. It will be up to the UK's High Court to determine whether that is the case.

The ECJ said the High Court would have to decide whether SAS' user manual was sufficiently expressive of the author of the manual's own intellect to be itself worthy of copyright protection.

The UK High Court asked the ECJ to rule on the scope of copyright protection for software in the EU's Computer Programs Directive and Copyright Directive before determining its final ruling on the case between SAS and WPL.

SAS has claimed that WPL infringed its copyrights by developing a rival software program by using information contained in SAS software manuals. SAS wanted the ECJ to apply copyright protections to the functions of computer programs, programming languages and file formats.

SAS makes programs which enable customers to analyse data and write other programs within the SAS environment to carry out specific functions. WPL wrote a piece of software which would allow former SAS users to execute programs written in SAS's language without continuing to pay SAS for the use of its systems.

WPL's software emulated the SAS system in an attempt to ensure that computer code written in the SAS system would behave in the same way in its system, which WPL said is cheaper than SAS's.

A UK High Court judge provisionally ruled in favour of WPL but acknowledged that there was sufficient doubt over how laws set out in the EU's Computer Programs Directive and Copyright Directive should be applied to merit a referral of questions to the ECJ over how it should interpret EU law.

Under the Computer Programs 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 EU Copyright Directive sets out rules on reproduction rights in relation to copyright works. 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".

The ECJ said it supported the view of a legal advisor to the court – Advocate General Bot – who published an opinion on the case last year and said that if copyright protection could be given to a computer program's functionality, it would make it "possible to monopolise ideas, to the detriment of technological progress and industrial development".

Companies that use computer program code created by rivals may in some circumstances be prohibited from doing so under the Computer Programs Directive, but the ECJ said WPL had not been guilty of an offence under the terms of that law.

However, it said it could not rule out the "possibility" that SAS may be able to rely on the laws governing the reproduction of "works" under the Copyright Directive to show that WPL's reproduction of its computer program "language" and data files "format" were prohibited because the "works" were devised by SAS' "own intellectual creation".

"The Court points out that ... the SAS language and the format of SAS Institute’s data files might be protected, as works, by copyright under [the terms of the Copyright Directive] if they are their author’s own intellectual creation," the ECJ said.

The Court also said that because WPL had not had access to the "source code" for SAS' computer program and because it held a legitimate licence for a copy of SAS' program, it had not been guilty of infringing SAS' copyright in how it "studied, observed and tested that program in order to reproduce its functionality" in its own program.

"With respect to the programming language and the format of data files used in a computer program to interpret and execute application programs written by users and to read and write data in a specific format of data files, these are elements of that program by means of which users exploit certain functions of that program," the ECJ said.

"In that context, it should be made clear that, if a third party were to procure the part of the source code or the object code relating to the programming language or to the format of data files used in a computer program, and if that party were to create, with the aid of that code, similar elements in its own computer program, that conduct would be liable to constitute partial reproduction within the meaning of [the Computer Programs Directive]."

"As is, however, apparent from the order for reference, WPL did not have access to the source code of SAS Institute’s program and did not carry out any decompilation of the object code of that program," it said. By means of observing, studying and testing the behaviour of SAS Institute’s program, WPL reproduced the functionality of that program by using the same programming language and the same format of data files."

The High Court will have to determine whether the user manual for SAS' program is protected by copyright and whether WPL is guilty of infringing those rights. The ECJ said it could not rule out whether WPL was liable for such an infringement when outlining what the High Court will have to consider.

"In the present case, 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," the ECJ said. "It 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."

"It is for the national court to ascertain whether the reproduction of those elements constitutes the reproduction of the expression of the intellectual creation of the author of the user manual for the computer program at issue in the main proceedings. In this respect, the examination, in the light of [the Copyright Directive], of the reproduction of those elements of the user manual for a computer program must be the same with respect to the creation of the user manual for a second program as it is with respect to the creation of that second program," the ECJ said.

Expertise in Copyright

Copyright is an extremely valuable, often unrecognised or misunderstood right which protects a whole range of original materials including written materials, software, artistic materials, music and dramatic works. It arises automatically without the need for registration in most countries and protects these materials from unauthorised copying. It is essential in business to identify such rights, ensure they are owned by the correct entity, properly protected, enforced and exploited.

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