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SAS Institute Inc. and World Programming Ltd. (WPL)
The UK Court of Appeal ruled on 21 November in the dispute between SAS Institute Inc. and World Programming Ltd. (WPL) that the functionality and programming of a computer program is not protected by copyright, finding, as the English High Court did, in WPL’s favour.
The litigation began when WPL developed a software system that was functionally equivalent to components of programs developed by SAS. Both systems allow users to write applications; SAS’ system requires that this is done in SAS programming language while WPL’s system allows the use of other programming languages such as C++. WPL, which had a customer licence from SAS, was aided by a ‘Learning Edition’ provided by SAS – designed for customers’ use in understanding SAS products – and a SAS user manual; both were utilised by WPL alongside the SAS system to observe and test how the SAS programs worked and to thus aid in WPL’s own design.
SAS litigated against WPL on a number of copyright claims both in terms of the system and the manual. These included the claim that WPL, in producing a system heavily based on the functionality of SAS’ program, infringed SAS’ system copyright.
Following a judgment in the English High Court by Arnold J and a referral to the CJEU, before Arnold J maintained his position in a second instance judgment, SAS brought the matter to the attention of Lewison LJ in the Court of Appeal. Lewison LJ found that software functionality could not be protected by copyright since functionality does not represent the expression of an intellectual creation. Instead, such expression remains with the source code for the program, which WPL had not been privy to. WPL’s functional recreation of SAS’ system instead was born from studying the program, as well as the literature SAS provided to its customers. Had WPL been able to access the source code and then copied it, this would have been an infringement of copyright.
The Court ruled that insofar as the ideas in the user manual were concerned, the manual described through its keywords, formulae and so on the functionality of the system it was produced to aid with – and the system’s functionality was not an expression of an intellectual creation.
Those involved in software will need to consider the consequences of this decision. For a start, the extent to which copyright can be found in a program is clearer than ever before. This will present opportunities for developers provided that they merely study and test a program’s functionality as WPL did here. Meanwhile, developers will want to avoid finding themselves in a position akin to that of SAS. Will functionally very similar programs become more common? If so, given that the challenge of proving infringement of copyright in a software system is now a more difficult one without a provable infringement of a source code, developers may find themselves in a more competitive market.