UnIP (UnIntellectual Property): Copyright for the Functionality of a Computer Program

At the outset, I will stress that this post relates to a copyright decision by the European Court of Justice (ECJ). It is not enforceable in a United States court of law. That said, it is instructive with regard to whether the functionality of a computer program, namely the programming language and the format of data files, is protectable as a copyright. English law (and that of the EU) is consistent with United States law in that general ideas are not protected by copyright, but the expression of these ideas is protected (commonly known as the idea/expression dichotomy). It may very well be that copyright infringement of computer software program cases in the United States would be decided in a similar way to the below case. However, whether what essentially amounts to reverse engineering is actionable copyright infringement remains case specific. The EU believes that recreating the functionality of a computer program does not in itself infringe copyright, but differentiating between functionality and ideas is what makes any decision, in the EU or US, subject to interpretation, and thus litigation. Had these same facts been applied in the United States, and thus subject to the widely-accepted and applied Abstraction-Filtration-Comparison test (AFC) involving computer software programs, a similar result may be likely.

In May 2012, the ECJ issued a decision, which the English Court will apply in order to resolve the copyright infringement dispute between Plaintiff SAS and Defendant WPL. SAS developed and offers statistical analysis software that must be written in SAS’s proprietary computer language in order to run. Thus, those using SAS software were forced to license SAS software in order to run the particular software application developed using SAS’s proprietary computer language. If they did not want to license from SAS, their programs were useless and would have to be re-written in another programming language. That was until WPL developed its own software program that mirrored SAS’s program and allowed users to run their particular software application on WPL’s program. In doing so, WPL did not have access to SAS’s source code and did not copy the text or structural design of the source code or object code. Instead, WPL studied how SAS’s program worked and merely recreated it. As a result, users could avoid paying licensing fees to SAS. SAS sued for copyright infringement of both its program (and its user manual).

Previous decisions had held that one could essentially reverse engineer how a system works and create its own, so long as no copying occurred. In addition, it had been well-maintained that one could not have copyright protection in the functionality of a software program or in the programming language or data file formats used in the software program. The judge found no infringement, but certified the question regarding copyrightability to the ECJ. The ECJ found that the functionality of a computer software program, which includes the programming language and the format of data files, amounts to the ideas behind a program, rather than a form of expression of the software program, and thus is not protected by copyright within the EU.

So, when the time comes to protect your computer software program anywhere in the world, all forms of intellectual property should considered. It is interesting to think that SAS’s user manual may be entitled to copyright protection while its computer program was not. I’m glad I write blogposts and not computer programs, at least from a copyright protection standpoint.

SAS Institute Inc v World Programming Ltd, [2010] EWHC 1829 (Ch) (July 23 2010).


 

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