Intellectual Property – Copyright – Copyright Infringement – Infringement – Copyright Protection – Computer Programs
In the case of SAS Institute Inc v World Programming Ltd [2010], SAS Institute Inc (Claimant) developed analytical software known as SAS (the SAS system), an integrated set of programs which enabled users to carry out a wide range of data processing and analytical tasks, including statistical analysis. The SAS system was written in a SAS language and enabled users to write and run application programs (also known as 'scripts') to manipulate data.
There was an option to extend the functionality of Base SAS by three components: SAS/ACCESS, SAS/GRAPH and SAS/STA (collectively referred to as 'the SAS components').
The SAS system was developed over 35 years generating revenue of £2.3b. Many of SAS’s customers had written, or had written on their behalf, thousands of application programs in the SAS Language such as short and simple programs to large and complex programs.
The defendant envisaged a demand for alternative software to the SAS system which would be able to execute application programs written in the SAS language. It created a product called World Programming System (WPS) in this regard. WPS emulated much of the functionality of the SAS components to ensure that the same inputs would produce the same outputs. There was no indication that the defendant had access to and/or copies any of the text of the source codes of the SAS components or had copied any of the structural design of the source codes of the SAS components.
The defendant produced a WPS manual which described the functionality of various elements and the WPS guides, a set of four quick reference guides, listing elements of the SAS language.
In September 2009, the claimant brought proceedings against the defendant, alleging that:
· Copyright infringement - Copying of the SAS manuals
· Copyright Infringement - Copying the SAS manuals and therefore indirectly copying the programs comprising the SAS components
· Breach of contract – By using a version of the SAS system known as the Learning Edition in contravention of the terms of its licences
The Software Directive Article 1 (2) clearly states that:-
· There was no infringement of copyright in the source code of a computer program if a competitor studied how the program functions and then wrote its own program to emulate that functionality. In particular, the case of Navitaire, the judge interpreted Article 1(2) of the Software Directive as meaning that copyright in computer programs did not protect
o programming languages;
o interfaces; or
o the functionality of a computer program.
The claimant argued that the judge was wrong on each of the above points. Furthermore, the defendant had both committed a series of infringements of copyright and acted in breach of contract in creating WPS and the documentation. The claim that WPS infringed the copyright in the SAS Components raised the following issues in respect of copyright law:-
o the extent to which copyright protected procedures, methods of operation and mathematical concepts as distinct from expressions of those ideas
o the extent to which copyright protected the functionality and interfaces of computer programs and the programming languages in which they were expressed; and
o the test to be applied in determining what amounted to reproduction of a substantial part as in this case.
The court ruled:
· Computer programs are protected as literary works within the Berne Convention (see Article 10(1) of TRIPS, art 4 of the WIPO Copyright Treaty and Article 1(1) of the Software Directive);
· Computer programs are protected in the same manner and to the same extent as any other literary work (see Articles 5 and 6 of the Software Directive);
· There is a distinction between 'expressions', which were protected by copyright and 'ideas, procedures, methods of operation and mathematical concepts as such', which are nor protected by copyright (Article 9(2) of TRIPS and Article 2 of the WIPO Copyright Treaty)
· The UK courts had to interpret both the Software Directive and domestic law in conformity with both the relevant provisions of TRIPS and the relevant provisions of the WIPO Copyright Treaty due to European Union law and domestic law as a result of the principles of interpretation laid down by the European Court of Justice (ECJ).
· The UK courts should protect 'expressions' and not 'ideas, procedures, methods of operation and mathematical concepts as such'. Accordingly, it was necessary to distinguish between 'expressions' on the one hand and 'ideas, procedures, methods of operation and mathematical concepts as such' on the other. What was protected by copyright in a literary work was the form of expression of the literary work itself. Other things which were conveyed by or described in the literary work, of which 'ideas, procedures, methods of operation and mathematical concepts' were evidently a non-exhaustive list, which are not protected.
· What is protected by copyright in a literary work is the skill, labour and judgment in devising the form of expression of the literary work.
· It is incorrect that the judge in Navitaire was wrong to conclude that programming languages were not protected. The distinction drawn by the judge between a computer program and the language it was written in was, despite the judge's hesitancy on the point, perfectly consistent with the distinction between expression and ideas, procedures, methods of operation and mathematical formulae. Furthermore, in agreement with the judge, the correct interpretation of Article 1(2) of the Software Directive on this point was not clear, and a reference was required to the ECJ to determine it.
· Furthermore, even if the judge was right that programming languages were not protected, there was room for debate as to how broadly the concept of a programming language should be interpreted in that context. In relation to the question of whether interfaces were protected, that point could also be referred to the ECJ
· The judge's decision on that point had been upheld by the Court of Appeal in Nova which was binding on the instant court and until overruled by either the Supreme Court or the ECJ, however, the point was also referred to the ECJ for determination.
· In determining whether a substantial part of a literary work had been reproduced, it was essential to focus on what had been reproduced taking into account whether it expressed the author's own intellectual creation. Therefore, some dissection was required.
· On the assumption that the judge in Navitaire had correctly interpreted Art 1(2) of the Software Directive, the defendant had not infringed the copyright in the SAS components by developing WPS.
· Assuming that the reasoning applied by the judge in Navitaire, that it was not an infringement of copyright in a computer program to replicate its functions without copying its source code or design was correct, it was therefore not an infringement to reproduce such things either from a computer program or a manual. However, this interpretation of Article 2(a) of the Information Society Directive could not be considered to be clear and this question was referred to the ECJ also.
· Assuming that the Article 2(a) of the Information Society Directive was to be interpreted in the same manner as Article 1(2) of the Software Directive, the defendant had not infringed the claimant's copyright in the SAS Manuals by producing or testing WPS.
· On the true construction of the licence in connection with the Learning Edition, the defendant's uses had been outside the scope of the licence.
· The defendant's use of the Learning Edition was within Article 5(3) of the Software Directive, and therefore that none of the defendant's acts complained of had been a breach of contract or an infringement of copyright except perhaps one.
· In determining whether part of a work had been reproduced, the test is whether the parts which had been reproduced expressed the intellectual creation of the authors of the work. In this case, the parts of the SAS manuals that the defendant had reproduced expressed the intellectual creation of the authors of the manuals. Therefore, the defendant had infringed the copyright in the manuals by substantially reproducing them in the WPL manual.
· However, the collection of keywords in the WPS guides had grown by accretion and had not been an intellectual creation of an author or group of authors. It followed therefore that the defendant had not reproduced the intellectual creation of the authors of the SAS manuals, with the result that it had not infringed the copyrights in those manuals by producing the WPS guides.
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© RT COOPERS, 2010. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.
