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| The joys of Google Image: a search conducted under the name of the Advocate General turned this up as the first search result |
In essence, SAS Institute Inc. developed analytical software the SAS System. This System was an integrated set of programs that let users carry out data processing and analysis tasks, especially statistical analysis. The core component of the SAS System was Base SAS, which let users write and run application programs to manipulate data, these applications being written in SAS Language. The functionality of Base SAS could be extended by the use of additional components, of which three -- SAS/ACCESS, SAS/GRAPH and SAS/STAT (referred to together with Base SAS as ‘the SAS components’) -- were relevant to this dispute.
Once upon a time the SAS Institute’s customers had no alternative but to take its licence to use the SAS components in order to be able to run their existing application programs in SAS language or to create new ones. Any customer wishing to change software supplier would have to rewrite its existing application programs in a different language, at considerable cost. For that reason, World Programming Limited (‘WPL’) had the idea of creating an alternative computer program, the World Programming System (‘the WPL System’), to let users run application programs written in SAS language. WPL admitted that its intention was to emulate much of the functionality of the SAS components as closely as possible, so that the same inputs would produce the same outputs, since WPL wanted its customers’ application programs to run in the same way on the WPL system as it had on the SAS components.
SAS Institute sought an order that WPL’s actions infringed copyright in its computer programs. In two separate decisions, UK courts have ruled that it was not an infringement of the copyright in the source code of a computer program for a competitor of the right owner to study how the program functions and then to write its own program to emulate that functionality. SAS Institute, challenging that approach, has brought an action before the referring court and complaining that WPL has (i) copied the manuals for the SAS System published by SAS Institute when creating the WPL System, (ii) in so doing, indirectly copied the computer programs comprising the SAS components,(iii) used a version of the SAS system known as the ‘Learning Edition’, in breach of the terms of the licence relating to that version and the commitments made under that licence, and its copyright in that version, and (iv) infringed the copyright in the SAS Manuals by creating its own WPL manual.
Mr Justice Arnold stayed the proceedings and asked the Court of Justice for a considerable quantity of preliminary guidance:
"‘1. Where a computer program (“the First Program”) is protected by copyright as a literary work, is Article 1(2) [of Directive 91/250] to be interpreted as meaning that it is not an infringement of the copyright in the First Program for a competitor of the rightholder without access to the source code of the First Program, either directly or via a process such as decompilation of the object code, to create another program (“the Second Program”) which replicates the functions of the First Program?
2. Is the answer to question 1 affected by any of the following factors:
(a) the nature and/or extent of the functionality of the First Program;
(b) the nature and/or extent of the skill, judgment and labour which has been expended by the author of the First Program in devising the functionality of the First Program;
(c) the level of detail to which the functionality of the First Program has been reproduced in the Second Program;
(d) if the source code for the Second Program reproduces aspects of the source code of the First Program to an extent which goes beyond that which was strictly necessary in order to produce the same functionality as the First Program?
3. Where the First Program interprets and executes application programs written by users of the First Program in a programming language devised by the author of the First Program which comprises keywords devised or selected by the author of the First Program and a syntax devised by the author of the First Program, is Article 1(2) [of Directive 91/250] to be interpreted as meaning that it is not an infringement of the copyright in the First Program for the Second Program to be written so as to interpret and execute such application programs using the same keywords and the same syntax?
4. Where the First Program reads from and writes to data files in a particular format devised by the author of the First Program, is Article 1(2) [of Directive 91/250] to be interpreted as meaning that it is not an infringement of the copyright in the First Program for the Second Program to be written so as to read from and write to data files in the same format?
5. Does it make any difference to the answer to questions 1, 3 and 4 if the author of the Second Program created the Second Program by:
(a) observing, studying and testing the functioning of the First Program; or
(b) reading a manual created and published by the author of the First Program which describes the functions of the First Program (‘the Manual’); or
(c) both (a) and (b)?
6. Where a person has the right to use a copy of the First Program under a licence, is Article 5(3) [of Directive 91/250] to be interpreted as meaning that the licensee is entitled, without the authorisation of the rightholder, 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, if the licence permits the licensee to perform acts of loading, running and storing the First Program when using it for the particular purpose permitted by the licence, but the acts done in order to observe, study or test the First Program extend outside the scope of the purpose permitted by the licence?
7. Is Article 5(3) [of Directive 91/250] to be interpreted as meaning that acts of observing, testing or studying of the functioning of the First Program are to be regarded as being done in order to determine the ideas or principles which underlie any element of the First Program where they are done:
(a) to ascertain the way in which the First Program functions, in particular details which are not described in the Manual, for the purpose of writing the Second Program in the manner referred to in question 1 …;
(b) to ascertain how the First Program interprets and executes statements written in the programming language which it interprets and executes (see question 3 …);
(c) to ascertain the formats of data files which are written to or read by the First Program (see question 4 … );
(d) to compare the performance of the Second Program with the First Program for the purpose of investigating reasons why their performances differ and to improve the performance of the Second Program;
(e) to conduct parallel tests of the First Program and the Second Program in order to compare their outputs in the course of developing the Second Program, in particular by running the same test scripts through both the First Program and the Second Program;
(f) to ascertain the output of the log file generated by the First Program in order to produce a log file which is identical or similar in appearance;
(g) to cause the First Program to output data (in fact, data correlating zip codes to States of the United States of America) for the purpose of ascertaining whether or not it corresponds with official databases of such data, and if it does not so correspond, to program the Second Program so that it will respond in the same way as the First Program to the same input data.
8. Where the Manual is protected by copyright as a literary work, is Article 2(a) [of Directive 2001/29] to be interpreted as meaning that it is an infringement of the copyright in the Manual for the author of the Second Program to reproduce or substantially reproduce in the Second Program any of the following matters described in the Manual:
(a) the selection of statistical operations which have been implemented in the First Program;
(b) the mathematical formulae used in the Manual to describe those operations;
(c) the particular commands or combinations of commands by which those operations may be invoked;
(d) the options which the author of the First Program has provided in respect of various commands;
(e) the keywords and syntax recognised by the First Program;
(f) the defaults which the author of the First Program has chosen to implement in the event that a particular command or option is not specified by the user;
(g) the number of iterations which the First Program will perform in certain circumstances?
9. Is Article 2(a) [of Directive 2001/29] to be interpreted as meaning that it is an infringement of the copyright in the Manual for the author of the Second Program to reproduce or substantially reproduce in a manual describing the Second Program the keywords and syntax recognised by the First Program?’".The Advocate General has advised the Court of Justice to rule as follows:
"1. Article 1(2) of Council Directive 91/250 ... on the legal protection of computer programs is to be interpreted as meaning that the functionalities of a computer program and the programming language are not eligible, as such, for copyright protection [No problem so far, since this seems to reflect the conventional understanding, ever since the days of the original software directive if not before, that functionality qua functionality was not copyright-protecte subject matter]. It will be for the national court to examine whether, in reproducing these functionalities in its computer program, the author of the program has reproduced a substantial part of the elements of the first program which are the expression of the author’s own intellectual creation. [Here the problems start, in so far as the AG appears to see a binary system in which a work, including a computer program, is either functional or the expression of individual creation: a trial judge is more likely to be presented with a continuum between two overlapping concepts]
2. Articles 1(2) and 6 of Directive 91/250 are to be interpreted as meaning that it is not regarded as an act subject to authorisation for a licensee to reproduce a code or to translate the form of the code of a data file format so as to be able to write, in his own computer program, a source code which reads and writes that file format, provided that that act is absolutely indispensable for the purposes of obtaining the information necessary to achieve interoperability between the elements of different programs. [Given the intention of the software as well as its actual provisions, this should not prove controversial] That act must not have the effect of enabling the licensee to recopy the code of the computer program in his own program, a question which will be for the national court to determine.
3. Article 5(3) of Directive 91/250, read in conjunction with Articles 4(a) and (b) and 5(1) thereof, is to be interpreted as meaning that the expression ‘any of the acts of loading, displaying, running, transmitting or storing the computer program [which the person having the right] is entitled to do’ relates to the acts for which that person has obtained authorisation from the rightholder and to the acts of loading and running necessary in order to use the computer program in accordance with its intended purpose. Acts of observing, studying or testing the functioning of a computer program which are performed in accordance with that provision must not have the effect of enabling the person having a right to use a copy of the program to access information which is protected by copyright, such as the source code or the object code. [Problem here for copyright traditionalists: the words "information which is protected by copyright" seem wrong unless you consider that copyright protects information, rather than the manner in which it is expressed -- which in turn takes us back to the old arguments about the protectability of expression which is the only manner in which an idea or information is capable of being expressed, which takes us back to all that lovely idea/expression dichotomy litigation in the United States back in the previous century ...]
(4) Article 2(a) of Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society is to be interpreted as meaning that the reproduction, in a computer program or a user manual, of certain elements described in the manual for another computer program may constitute an infringement of the copyright in the latter manual if – a question which will be for the national court to determine – the elements reproduced in this way are the expression of their author’s own intellectual creation".
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