No Room for Programming Functions in EU Copyright

     (CN) – An adviser to Europe’s high court said that neither the functionality of a computer program nor its programming language are protected by European copyright laws.



     The Chancery Division of the United Kingdom’s High Court of Justice asked the European Court of Justice to clarify the scope of copyright protections for computer programs under European Union law in a case filed by SAS Institute against World Programming.
     SAS alleged that World Programming had violated SAS’s copyrights when it developed software that was able to execute application programs written in SAS programming language.
     World Programming’s product also allowed its customers to access and process data stored in SAS’s proprietary format, eliminating the need to buy licenses from SAS if users want to develop new functions to analyze their data.
     In his nonbinding opinion, Advocate General Yves Bot of the EU Court of Justice said that “the functionality of a computer program is the service which the user expects from it.” These functionalities are similar to ideas in that many programs have the same functionality because they are based on the same idea like word processing and spreadsheet programs, he added.
     “To accept that a functionality of a computer program can be protected as such would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development,” Bot wrote.
     By contrast, the “means of achieving the concrete expression of those functionalities” can be protected because “creativity, skill and inventiveness manifest themselves in the way in which the program is drawn up, in its writing.”
     “The programmer uses formulae, algorithms which, as such, are excluded from copyright protection because they are the equivalent of the words by which the poet or the novelist creates his work of literature,” Bot wrote. “However, the way in which all of these elements are arranged, like the style in which the computer program is written, will be likely to reflect the author’s own intellectual creation and therefore be eligible for protection.”
     If the Court of Justice heeds Bot’s recommendation, the British court will have to consider whether “World Programming reproduced a substantial part of the elements of the SAS System which are the expression of SAS Institute’s own intellectual creation.”
     Sticking to his literary analogy, Bot said that the programming language used to write a program can not itself be protected.
     “Since programming language is an element which allows instructions to be given to the computer it must be compared … with the language used by the author of a novel,” he wrote. “Programming language is thus the means which permits expression to be given not the expression itself.”
     If the British court determines that reproduction or translation is “absolutely indispensable” to make two programs interoperable, World Programming may get the green light to reproduce some SAS program code or translate codes so that its own product can read SAS data files. The court would also have to show that such conduct does not mean simply copying all of SAS’s product into World Programming’s product.
     The advocate general is charged with proposing legal solutions for issues set to be heard before the European Court of Justice, but those proposals are not binding on the court. The court has just begun its deliberations in SAS Institute Inc. v World Programming Ltd.

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