Lakshmi Kumaran & Sridharan AttorneysAn ISO 9001 / 27001 certified law firm

Computer program - No copyright protection to functionality and language

By Subhash Bhutoria 

In a recent decision by the European Union’s Court of Justice (CJEU) the Court has opined that the functionality and language of a computer program do not enjoy copyright protection under the EU directives. This article aims to highlight the EU Court’s interpretation of the EU directives and further analyze the case on hand.      

The matter SAS Institute Inc. (‘SAS’) v World Programming Ltd. (‘WPL’) was referred to the CJEU by the High Court of Justice of England and Wales (Chancery Division) for a preliminary ruling concerning the interpretation of Articles 1(2) and 5(3) of the Council Directive 91/250/EEC and Article 2(a) of the Council Directive 2001/29/EC.      

Briefly, the facts of the case are as follows. SAS is the owner of a leading statistical analysis program, whose core component ‘BASE SAS’ enables users to write and run their own application programs (‘scripts’) in order to adapt the SAS system to work with their data. WPL independently developed a competing program aimed at enabling the customers to run their aforesaid scripts on WPL’s program. Admittedly, WPL studied the SAS manuals and tested the operations of a licensed SAS program to understand the methods of the said SAS program. However, WPL had no access to the source code of the said SAS program and developed its competing program on the basis of study, observation and testing of SAS program.      

SAS preferred law suit before the High Court of Justice of England and Wales, seeking to prevent WPL from providing customers an alternative to the SAS program. SAS claimed inter alia that WPL copied its manuals while developing its impugned program and thereby indirectly copied the SAS program.      

Arnold J. of the Chancery Division held that WPL has not infringed the copyright of SAS on the basis that the parties’ respective programs are substantially similar only in regard to their functional behavior and programming language, which is not protected under the Directive. However, Arnold J. referred the matter to the European Court of Justice seeking interpretation of the Directives in respect of, inter alia, the following questions:    

a)      Whether under Article 1(2) of the Council Directive 91/250/EEC, creating a program without access to object code or de-compilation of the object code of the first program amounts to infringement?
 
b)      Whether under Article 5(3) of the Council Directive 91/250/EEC, licensee is entitled, without the authorization of the right holder, to perform acts of loading, running and storing the program in order to observe, test or study the functioning of the first program so as to determine the ideas and principles which underlie any element of the program? 

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[The author is a Senior Associate, IPR Division, Lakshmikumaran & Sridharan, New Delhi]
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