The extent of copyright protection offered to software companies is being tested in the case of SAS v WPL with a full judgement due from the ECJ later this year. It is well understood that English Law offers protection to the expression of ideas but not to the idea itself. The recent opinion of Advocate General Bot in SAS v WPL has considered this principle in relation to software development.
SAS v WPL: Facts of the Case
SAS is a software developer that has produced software enabling users to write and run applications in SAS language. Users have produced many applications in this language. In order to execute these applications they must be used in conjunction with the core SAS system - 'Base SAS' - requiring an SAS licence. These applications will not run on non-SAS systems without being re-written. WPL is a small UK software developer that produced a system to mimic the functionality of the SAS system. It did so without accessing the internal code of the SAS system and without copying the code. WPL used SAS manuals and a limited version of the SAS system to work out the functional requirements of the system it needed to create.
SAS sued WPL for breach of copyright for copying its manuals, for using them to produce WPL manuals, indirect copying of the SAS components via the manuals and breach of the licences related to the version of SAS used by WPL.
Ideas and Expression
The idea underlying a computer programme cannot be protected by copyright but its expression -the source or object code - can. Adding a layer of complexity; legislation including TRIPS, the WIPO Copyright Treaty and the Software Directive excludes ideas, procedures, methods of operation and mathematical concepts from protection. According to Advocate General Bot, however copyright will extend to any other element expressing the creativity of the author.
Conclusion
Advocate General Bot's opinion reinforced the principle that copyright does not extend to the functionality of a programme or programming languages. However, copyright is not limited to source or object code and may reach other elements of the author's creativity which means software developers must take care in their approach even if they do not use original source code. In addition he considered Article 5(3) of the Software Directive and confirmed that a licensee of a computer program may observe, study and test the functionality of a programme but must do so within the terms of the relevant licence.
For more information about this intellectual property case note, please contact our intellectual property solicitor James Crighton via e-mail jcrighton@rollingsons.co.uk or by phone on 0207 611 4848.
