13 December 2013

Walk the Line - Copyright Protection for Software

To what extent can a software developer lawfully copy the functions of pre-existing software, and what materials can he lawfully use for that purpose? These were the underlying issues in the case of SAS Institute Inc v World Programming Limited, recently decided by the Court of Appeal.

A line is often drawn between an idea - which cannot be protected by copyright - and the expression of that idea - which can.  The question for the Court in this case was to what extent, if any, World Programming Limited ("WPL") had crossed that line in developing WPS, an alternative program to SAS Institute's suite of analytical software ("SAS").  


WPS can develop and run applications written in the SAS language to produce the same statistical outputs, and so essentially allow SAS users to port existing applications across from SAS to WPS. In doing so, it emulates much of the functionality of SAS.

WPL did not have access to the SAS source code when it developed WPS, but it did have access to and studied a limited functionality "Learning Edition" of the SAS software together with the accompanying manuals.

SAS alleged that:
  1. WPL had used the SAS manuals as technical specification for WPS and copied a substantial part of those manuals in creating WPS itself, in the process infringing copyright in the SAS manuals (the "Manual to Program Claim");
  2. WPL had indirectly infringed copyright in SAS in creating WPS (the "Program to Program Claim");
  3. WPL had infringed copyright in the SAS manuals by reproducing a substantial part of them in WPL's own WPS manual (the "Manual to Manual Claim"); and
  4. WPL had repeatedly used the SAS Learning Edition outside the scope of the applicable licence to obtain additional information about SAS, and to check that the operations of WPS replicated those of SAS, in the process infringing copyright in the SAS Learning Edition and acting in breach of contract (the "Learning Edition Claim").
Following a reference to the Court of Justice of the European Union ("CJEU"), the High Court dismissed all of SAS's claims, with the exception of a limited finding of textual copyright infringement in relation to the Manual to Manual Claim. 

SAS did not appeal the decision on the Program to Program Claim, the CJEU having left no room for argument that neither the language nor functionality of SAS were protected by copyright.  WPL did not appeal the decision on the Manual to Manual Claim. 

That left the following issues for determination by the Court of Appeal.

The Manual to Program Claim

The essence of this claim was that by writing the code for WPS (in Java and subsequently C++) WPL had copied the SAS manuals.  However, those manuals did not in fact contain any programming language themselves, but simply described the functionality of the SAS program.

The Court held that the functionality of the program fell on the ideas side of the line that was not protected by copyright.  It was only the expression of that functionality (ie the source code), rather than the functionality itself, that could be protected by copyright.  

WPS did not copy the description in the SAS manuals of the SAS functions, it simply executed those functions.  What WPL took was not, therefore, capable of protection by copyright.

Moreover, the judge held that having failed to achieve copyright protection for its functionality via the Program to Program Claim, it would be against public policy for SAS to achieve the same result indirectly via this route.

The Manual to Manual Claim

The WPS manual described the WPS program, which in turn, to a greater or lesser extent, had been created from observation of the SAS functionality and its description in the SAS manuals.  Did that mean that the WPS manual had been copied from the SAS manuals?

The Court of Appeal said no.  It was similar to the situation where a chef invents a new pudding and writes down the recipe, and a competitor then comes along, creates a similar pudding and writes down the recipe for that. In those circumstances, the second recipe is not an infringement of copyright in the first recipe.  By analogy therefore the WPS manual was not an infringement of copyright in the SAS manuals.

The Learning Edition Claim

The main issue here was that the licence for the SAS Learning Edition which WPL had acquired only permitted use of the software for "non-production" purposes, and by those individuals who had clicked through the online licence agreement.

In breach of those terms, it was alleged that WPL had used the software for purposes that were not "non-production" (ie to develop competing software) and it had allowed use of the software by employees who had not clicked through the licence.

However, European legislation (in the form of the Software Directive) authorises lawful acquirers of software to observe, study or test that software in the course of running it in order to determine the underlying ideas and principles, and it prohibits any contractual restrictions to the contrary.

The Court therefore held that the limitation on use of the software to "non-production" purposes was invalid to the extent that it prohibited the observation, study or testing of the software in order to determine the underlying ideas and principles.

Furthermore, the Court held that WPL as a company had acquired the right to use the Learning Edition software, and it followed there was no restriction on the number of employees whom WPL could authorise to observe, study and test the program, provided they did so one at a time and at a single workstation at a time.

Accordingly the appeal was dismissed.

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