Mr Justice Arnold said it was his "provisional view" that a computer programming language could not be considered a 'work' in which copyright could subsist.
The judge was giving his opinion on the issue in a case involving rival software developers, SAS Institute (SAS) and World Programming Limited (WPL), in which he cleared WPL in most respects of having infringed SAS' copyright when it obtained a licence to use SAS' software in order to test out that programme, read instructions SAS had published in accompanying user manuals, and then create its own rival software programme.
Mr Justice Arnold formed his judgment after considering the way the Court of Justice of the European Union (CJEU) had answered questions he had posed it. He had sought guidance on how to interpret EU copyright laws laid out in the Computer Programs Directive when determining whether or not WPL had committed copyright infringement.
The judge had already determined that WPL was guilty of infringing SAS' copyright by reproducing a substantial part of SAS' user manuals in its own manual to accompany its rival software – a judgment he reiterated in his latest ruling.
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".
In its ruling the CJEU had ruled that the way a computer program functions is not copyrightable. It 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 Computer Programs Directive.
Mr Justice Arnold decided to give his opinion on whether a computer programming language was copyrightable despite preventing SAS from arguing the point in light of the CJEU's ruling. SAS had failed to make the argument during earlier stages of proceedings that the SAS programming language utilised by SAS' software was a copyright work itself. The judge therefore said that it was too late for SAS to now argue the point because it would raise both "factual and legal issues of considerable difficulty". He said that there was authority to permit new arguments to be heard at a late stage of proceedings if the claims "raised a pure issue of law", but said this was not the case with SAS' argument.
In forming his opinion on the matter, Mr Justice Arnold said that it is arguable that a 'work' could be considered copyrightable even if it does not fall within one of the categories of works listed as copyrightable under UK copyright laws. However, a computer programming language he said was not an example of such a work.
Mr Justice Arnold also said that a distinction had to be drawn between giving copyright protection to a particular work and assessing the "technical means by which fixation [of the copyrighted work] is achieved".
"A dictionary and a grammar are works which describe a language," the judge said. "Such works record, and thereby fix, the elements of the language they describe: the meanings of its words and its syntax. It does not follow that the language is a work. Rather, the language is the material from which works (including dictionaries and grammar) may be created."
SAS had claimed that because the programming language it used was an "intellectual creation" it should be considered as a work. Mr Justice Arnold rejected this argument, stating that international copyright treaties had particular carve outs that made it clear that some 'intellectual creations' do not qualify for copyright protection.
He also said it was "doubtful" that SAS' programming language could be classed as a 'compilation' work in which copyright protection applied because of the way the language had evolved over time. This is because the evolution of the language had not been planned and was not part of the "overall design", the judge said.
Mr Justice Arnold also prevented SAS from arguing that WPL had infringed copyright that it said subsisted in its "data file formats" within its software. Again the claim, requiring "difficult new factual and legal issues to be investigated", was lodged too late in proceedings, the judge ruled. However, Mr Justice Arnold, in expressing his view on the matter, said that it was "open to evidence and argument" whether data file formats could be said to be sufficiently original in nature to be classed as works of "intellectual creation".
"What is required [for a work to be original enough to be classed as an intellectual creation in which copyright subsists] is something on which the author has stamped his 'personal touch' through the creative choices he has made," Mr Justice Arnold said.
The judge further ruled that WPL had not been guilty of substantially reproducing the functionality of SAS' software. He also said that whilst it is possible for a copyrightable work to be formed from elements that are themselves not copyrightable, he said that no such compilation had been created in the text of SAS' user manuals.
Under the Computer Programs Directive legal persons are permitted to "observe, study or test the functioning" of a computer 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".
SAS had argued that WPL had breached its licensing agreement because WPL staff that had not been authorised under the terms of the agreement to utilise the software had done so, and that they had done so for purposes which were also not permissible under the terms of that contract.
However, Mr Justice Arnold said that software providers cannot prohibit licensees from exercising their observation, studying or testing rights under the terms of the Directive by restricting those rights in clauses of licensing contracts. The judge said that WPL was a "legal person" and that it could legitimately enable staff members who were not permitted from otherwise using SAS' software to use the software to exercise its observation, studying or testing rights.
WPL had tested SAS' software to create a list of US zip code addresses. It did so in order to work out how SAS' software worked and then used this "method of operation" to create its own program. Mr Justice Arnold said that as the zip code data WPL produced was not a work protected by copyright and owned by SAS, WPL did not commit an infringing act by ascertaining how SAS' software generated that information in order to set up the same function within its own systems.