SAS v WPL - programming languages not protected by copyright

 Yesterday the High Court handed down its decision in SAS Institute Inc. v World Programming Ltd in which it applied the CJEU's decision about which aspects of a computer program may be protected by copyright (which Jeremy reported on back in May of last year, here).

A reminder of the facts

SAS developed the SAS system, which enables data processing and analysis tasks. A key aspect of the SAS system is that users can write and run their own applications to use the system to manipulate data. These programs had to be written in the SAS language, a programming language developed by SAS meaning that users were then tied to the SAS system to run their own applications.

Along came World Programing Limited (WPL), creators of World Programming System, a system which replicated the functions of the SAS components. Crucially, World Programming System was compatible with the SAS language meaning that users were no longer tied to SAS and could use their own applications with World Programming System instead of the SAS system.

WPL created World Programming System by studying a Learning Edition of the SAS system (supplied under licence) and by consulting SAS's manual. There was no allegation that WPL had access to, or copied, SAS's source code.

The CJEU's answers

In responding to the High Court's questions on the interpretation of the Software Directive and the Information Society Directive, the CJEU held that:

- the functionality of a computer program, programming languages and the format of data files used in a computer program cannot be protected by copyright;

- users may observe, study or test the functioning of a program in order to determine the ideas and principles which underlie that program, notwithstanding contractual restrictions imposed by the owner of the program; and

- reproduction, whether in a computer program or in a user manual for that program, of certain parts of the user manual for another computer program may constitute infringement of copyright subsisting in that manual.

As Ben observed at the time, this was all fairly unremarkable.

The High Court's decision

So, the case was referred back to the High Court where Arnold J was required to determine whether WPL had infringed SAS's copyright. The short version is, that WPL had not, except where it had copied the SAS Manual. Arnold J held that the WPL Manual contained a substantial part of the SAS Manual so WPL had infringed copyright as set out in his first judgment (see here). Apart from that WPL had not infringed copyright in the SAS system.
The longer version is that, despite saying that SAS could not claim copyright in the SAS language, (because they had not pleaded so in the first place, and it was too late to re-amend their re-re-re-Amended Statements of Case) Arnold J went on to consider in some detail whether a programming language could be protected by copyright. He was of the view that confusion could arise when considering fixation. A programming language can be a way of fixing a work: source code can store an artistic image or a literary work. However, he said, the technical means by which fixation is achieved is irrelevant. Fixation should not be confused with the work itself.

He compared a programming language with a conventional spoken/written language saying that:

"A dictionary and a grammar are works which describe a language. Such works record, and thereby fix, the elements of the language they describe: the meanings of its words and its syntax. It does not follow that the language is a work. Rather, the language is the material from which works (including dictionaries and grammars) may be created… Programming languages such as the SAS Language are no different in this respect."

This seems uncontroversial: no-one would argue that the English language should be a copyright protected work over which one person should have a monopoly; in Arnold J's view it was irrelevant that the SAS language was a manufactured language as it would evolve with time in the same way as any other language.

What is interesting about Arnold J's analysis is that in considering the originality of a programming language he used the "intellectual creation" test, rather than the "skill, labour and judgment" test. Assuming a computer language is not a computer program, this implies that the test for originality is now harmonised for all works rather than just for computer programs, databases and photographs (see here and here).

More interesting still is that Arnold J went further, and said that even if he had found that a programming language could be an intellectual creation, it did not follow that it had to be a work. There has been some concern that the CJEU, in cases such as Infopaq, BSA, FAPL and SAS v WPL, have not only implied that the test for originality has been harmonised but also that all works that are their author's own intellectual creation are protected. This concept does not sit comfortably with s.1(1) CDPA. Arnold J seems, for the time being, to have clarified that the CJEU's broader definition of a copyright protected work does not apply in the UK.

Arnold J went on to hold that there was no evidence before him that the SAS data file formats were original so he could not find that they were works in which copyright had been infringed.

Arnold J made a further clarification when consider whether a substantial part of a work can be reproduced by elements which are themselves not protected by copyright. He relied on Infopaq to say that that was not possible. Therefore because the functionality, the programming language and the data file formats of a computer program are not protected by copyright, they are not relevant to the question of whether a substantial part of a work has been reproduced.

Finally, as regards the Learning Edition which WPL had used, under licence, Arnold J held that such use was within Article 5(3) of the Software Directive. Further he said that if such use was contrary to the licence terms those were null and void by virtue of Article 9(1) of the Software Directive. Therefore WPL did not infringe by using the Learning Edition.

So in summary, Arnold J confirmed that copyright cannot protect the look and feel of computer programs, which will not come as a great surprise to most. In this blogger's view the most interesting part of this judgment is the analysis concerning programming languages which explicitly cannot (and should not) be protected, and Arnold J's clarification that a work is not automatically protected simply because it is an "intellectual creation".

For legal free downloads head to Antigua & Barbuda

According to Reuters, Antigua & Barbuda will tell the World Trade Organization on Monday that it intends to use trade sanctions against the US, which it wants to enforce by enabling downloads of US content without enforcing copyright.

Antigua: free downloads and beautiful beaches

This all stems from a dispute that Antigua filed with the WTO back in 2003. Antigua had a thriving gambling industry which used to employ nearly 5% of all Antiguans, however the industry all but collapsed when the US prevented Antigua from accessing its market. On 21 March 2003, Antigua requested consultations with the US regarding the measures it has applied affecting the cross-border supply of gambling and betting services. Antigua said that the cumulative impact of these measures was to prevent the supply of gambling and betting services from another WTO Member to the US on a cross-border basis.

After a lot of to-ing and fro-ing, the matter was referred to arbitration. The arbitrator found that Antigua was entitled to US$21 million annually. Antigua was permitted to request authorisation from the WTO dispute settlement body to suspend obligations under the TRIPS Agreement, i.e. to impose trade sanctions on the US, at a level not exceeding US$21 million annually.

Antigua was well aware that threatening to block US imports to a country of 70,000 people would have little impact, so WTO granted it the right to sell US content free from copyright instead. According to TorrentFreak, Antigua put the topic on the WTO meeting last month, but the US blocked it from being discussed by arguing that the request was "untimely", however Antigua is expected to try again on 28 January.

This blogger sees this as evidence of what we all already know: that trade of online content and information is fast become as valuable as trade of physical goods.

For full details of the various stages of the dispute, see here.

Global Repertoire Database tunes up

Progress on the creation of a Global Repertoire Database (GRD) for musical works has moved ahead strongly over the past twelve months with the completion of the Scoping Study and the commencement of the Requirements and Design Phase according to a new press release, which also says that  2013 will mark some important milestones in the realisation of the project.

The scope of the GRD is to provide a single, comprehensive and authoritative representation of the global ownership and control of musical works. Once deployed the GRD will "save extensive costs, currently lost to duplication in data processing". Delivery of the project is driven by the GRD Working Group: This consists of representatives from 14 organisations of creators, publishers, collective management societies, digital service providers and their trade associations –APRA, GEMA, PRS for Music, SACEM, STIM, CISAC, Sony/ATV/EMI Music Publishing, Universal Music Publishing, Warner Chappell Music, ICMP, ECSA, Google, iTunes and Omnifone. In all, nearly 30 companies represented by nearly 100 individuals are directly involved in the work worldwide. Thirteen collective management societies for music are supporting the project with funding, knowledge and access to their databases and these are APRA, GEMA. PRS, STIM and SACEM as well as ASCAP, BMI, SGAE, SIAE, UBC, BUMA, SABAM and SOCAN. The project is managed by Deloitte with support from ICE and FastTrack as technology solution providers.

Andrew Jenkins, Chair of ICMP (International Confederation of Music Publishers) commented: “ICMP and its music publisher members around the world are committed to the development of the Global Repertoire Database which will benefit all those who have a stake in improved music licensing processes including creators, music publishers, collecting societies, music suppliers and fans of music everywhere. Indeed, it is impossible to argue against the benefits of the GRD for the wider community and all of us involved are working together to deliver something that will be a game-changer for the industry". 

A series of distinct project phases have been completed thus far and the period since March 2012 has been spent ensuring that all parties are comfortable with the way forward and putting the necessary structures in place. Work on the Requirements and Design phase of the project began in October 2012 and will run until May 2013. During this project phase, focus will be on the business requirements and rules of the database including a definition of standards for works, agreements and repertoire mandates as well as definition of the GRD logical data model.

Robert Ashcroft Chief Executive of PRS for Music said “The Global Repertoire Database is the building block for the future success of the legal online music market. PRS for Music has supported the project from the outset and we are committed to making the initiative work for the benefit of rights holders and rights users globally". 

GRD will be set up as a legal entity during the project phase, the business plan will be completed and the logical technology architecture for the system will be defined. In mid-2013, the project will move into the technology build, with a first release of the database due in 2015.

http://globalrepertoiredatabase.com/

Infringing World of Warcraft theme park built in China

The online video game industry is a big industry: the global market for video games is forecasted to grow from US$67 billion in 2012 to US$82 billion in 2017. And it is an industry which protects its copyright fiercly (see here, here and here for recent posts about video games).

Within that industry one of the most popular games is World of Warcraft, a multi-player role playing game released by Bizzard Entertainment. World of Warcraft had over 10 million subscribers in October 2012 and is currently the world's most-subscribed multi-player role playing game.

In order to capitalise on World of Warcraft, and other games', successes, a theme park has been built in Changzhou, China: World Joyland. The park, which is not licensed by Blizzard Entertainment, is a clear rip-off of Blizzard's games but it stops short of directly copying the games. For instance, it is split into 5 different sections each representing a different game: Terrain of Warcraft (Warcraft), Universe of StarCraft (Starcraft), Island of Mystery, Moles World and World of Legend. The rides have names like "Splash of Monster Blood" and are populated by statues which look like the series' icons.

This comes as China's Ministry of Industry and Information Technology (MIIT) announces that it will establish a digital dispute-resolution centre to resolve IP disputes and online copyright issues.

Tao Dongshu, the deputy director of Electronic Science and Technology of the Ministry of Industry and Information Institute of Intellectual Property Forensics Center, said that as networks have become the main medium for transmission of content, the internet has been a major challenge in combating piracy.

One can't help but wonder whether China should refocus its efforts to combat intellectual property infringements offline before it tackles the online world. The clear message being communicated by China tolerating infringing US$48 million theme parks and infringing buildings, is that copyright isn't a right worth enforcing.

See more on copyright in China here.

Right of Publicity Trumps Artistic Freedom of Expression

A recent ruling by the Paris High Court (10 January 2013) in expedited or summary proceedings (référé) (see here) highlights the tension that can exist between the right of publicity (droit à l'image in French law parlance) and artistic freedom.

A renowned Spanish artist used some photographs taken of his former girlfriend to create works of contemporary art.  As the pictures at issue were initimate in nature, she objected and based her action on article 9 of the  Civil Code which protects privacy and the right of publicity.  The artist retorted that he was entitled to rely on article 10 of the European Convention on Human Rights protecting freedom of expression (including artistic expression).

The Court first dispensed with the threshold question of whether the plaintiff was recognizable in the pictures at issue (finding that she was indeed) and then continued its analysis by ascertaining whether or not the plaintiff had consented – expressly or impliedly – to the taking of the pictures and their subsequent reproduction and dissemination.  Note that in order to be successful, such a defense of consent must prove that the plaintiff consented not only to the picture being taken but also to its subsequent reproduction and dissemination.

It concluded that her behaviour could indeed be interpreted as consent with respect to one such picture due principally to the fact that she had attended the ceremony at which the artist had received a prize for the work created on the basis of such picture (actually, to be precise it concluded that there was a genuine issue as to such consent with regard to this picture, which was sufficient to conclude that référé proceedings were not appropriate).  However, with respect to the other pictures, it found no evidence that she had consented to their being reproduced and disseminated.  With respect to these pictures, the Court then proceeded to balance the two competing interests, finding in favour of the plaintiff :

« … it appears obvious that Virginie G.’s right not to have made public pictures of her in scenes that relate to her private and initimate life must prevail over Juan F.’s freedom of expression, be it of an artistic nature. »

Handy link to those out-of-copyright vignettes

Readers of this blog over the past couple of years have been treated to a series of elegantly-written pieces by Miriam Levenson, these being biographical vignettes of writers, composers, artists and other authorial creators whose deaths triggered the release into the public domain of their copyright-protected works in life-plus-seventy jurisdictions.

Miriam has now set up her own website, which contains a page with links to the 20 vignettes which she has supplied to this blog over the past two winters.

Re-digi to launch in Europe, Mega II online!

Re-digi, the controversial online service that allows consumers to sell their unwanted digital music files, is going to launch in Europe. Despite many fearing the service would run out of funding after EMI's Capitol Records launched a legal challenge to the service in the USA, it seems Re-digi's CEO John Ossenmacher is not only fully convinced of the legality of the service in the US under the 'first sale' doctrine, but no doubt cheered up by the European Court of Justice's ruling in Oracle v Usedsoft, is confident the service will be found to be legal in European jurisdictions. ReDigi asks users to download proprietary software, which verifies if a file was bought legally. If the song checks out, it is then erased from the seller's hard drive and uploaded to ReDigi's computer servers for onward sale as a 'used' second hand file.

Also launching is Kim Dotcom's new MEGA cloud locker service. The big innovation with Mega  V2 is that files uploaded to the storage platform are automatically encrypted 'on-the-fly', with only the customer receiving the unlock code with the stated purpose of giving users privacy with Dotcom saying "this means when you transfer data anyone sitting on that line will get nothing as it is all scrambled and impossible to decrypt without your key. This is going to take encryption to the mainstream" although the encryption regime is expected to be used as a defence against any claims against the Mega service for user's copyright violations - as the service will be blind to any infringements.

NBC Universal settles font dispute for a record $3.5 million

The 1709 Blog is most grateful to Maxine Horn (CEO, Creative Barcode) for drawing our attention to recent media reports from the Hollywood Reporter and Extensis.com, announcing a US $3.5 million settlement by NBC Universal over an alleged licence infringement of Brand Design Co's 'Chalet' font. According to Maxine:

"The exact terms of the settlement remain unknown. However the settlement figure will have designers and their lawyers quaking in their boots when they give thought to instances in which they could have breached a font licence agreement.

Fonts and typefaces are purchased under licence, particularly by graphic design houses. Some are commissioned specifically by a corporate firm and are provided in digital font files to a design supplier, to enable them to use the correct typeface across a brand's marketing, advertising and packaging collateral.

The Brand Design Co, USA, settlement figure reached was based on $175 authorised licence fee multiplied by an alleged 20,000 unauthorised downloads of its Chalet font, used across the NBCU network. The licence holder was an NBCU subsidiary, Oxygen Media, which had purchased just a basic 36-user Chalet typeface and font software licence. Breach of use can occur when employees, freelance staff or students are working on client projects but are not advised of whether the fonts and typefaces are exclusive and under licence. Designers moving jobs often store typefaces under licence to their former firm or a client of their former firm and continue to use them, unlicensed, on projects in their new employers firm or on commissioned freelance contracts".

Maxine offers some further reading here and here

Linking "facilitates" copyright infringement in the Netherlands

© Geralt

The application of copyright law to linking is an interesting and much debated topic at the moment. This is particularly so in the Netherlands it seems, where twice in the last few months courts have held that linking to content can constitute "publication" of that content (see here and here).

This week, a Dutch maths teacher has been told by the Dutch courts that by providing links on his website to infringing pdf copies of answers to maths questions, he infringes copyright in the answers. The pdf copies had been illegally uploaded to the internet so it seems that the issue was not that linking to online material constitutes publication (as it was in the two above cases), but that linking to infringing content facilitates third party infringement (by the students who clicked on the links - presumably their infringing act would be to make local copies of the material?)

This case raises three basic issues:

First, it is arguable that a solution to a maths problem is not sufficiently original to attract copyright in the first place. Indeed the teacher argued that as there is only one correct answer to a maths problem that answer should not be protected by copyright. The Dutch court held that whilst there might only be on solution to the problem, there are various ways of explaining how to solve the problem and therefore the answers were subject to copyright.

Second, making copies for personal use is permitted in the Netherlands, so the students were not infringing copyright by clicking on the links. This was deemed irrelevant by the court.

Third, should it matter, from a copyright perspective, whether the content being linked to is infringing or not? Surely if the content is infringing the infringing act lies with the person who uploaded the material rather than with the person who reads it?

Nonetheless, the court held that although linking does not in itself constitute copyright infringement, the links enabled others to infringe copyright, meaning that the publisher of the maths books suffered a direct loss due to the links to pirated copies. The fact that the teacher made no profit from the providing the links was not a defence. The teacher was therefore found to have facilitated copyright infringement and was ordered to remove the links from his website and to pay both parties costs.

This blogger is no expert in Dutch copyright law, however this seems to be an example of courts using copyright law to remedy something which seems wrong (linking to infringing material), despite the fact that the law doesn't quite fit. If anyone has an English translation of the court's judgment this blogger would be interested to see what infringing act it was that the court thought that the teacher was facilitating.

See more on TorrentFreak, here.

SFR Scores Double Victory

                                                                         

On January 15th last, the same day that it won an important victory before the Paris Commercial Court in its fight with Free (relating to its mobile phones and principles of consumer law), SFR was given more good news by the French Constitutional Council regarding the Act of December 20, 2011 respecting private copy levies.

At issue was a provision of the Act (article 6, paragraph II) whose purpose was to retroactively validate levies that were the subject-matter of litigation prior to June 18, 2011 and which could have been challenged on the same grounds as those that had led to the ruling by the Conseil d’Etat of June 17, 2011 (essentially these grounds related to levies improperly paid on professionally acquired media and equipment whose presumed use did not fall under the private copying exception), a ruling by France's supreme court for administrative law which followed in the footsteps of the CJEU's Padawan ruling (see here). 

SFR had called into question (via the so-called QPC or priority constitutionality question) the legality of invoices received from Copie France (the entity tasked with collecting the levy) for hard drives incorporated into its boxes.  It argued that such invoices had been issued on the basis of a decision of the private copy commission of December 17, 2008 that had been quashed by the Conseil d’Etat in its June 17, 2011 ruling.   According to SFR this provision violated, inter alia, the the principle of separation of powers guaranteed by Article 16 of the 1789 Declaration of Human Rights. 

In its January 15, 2013 decision the Council declared the provision unconstitutional.  It first recalled the general principle that while the legislator is free to retroactively change a legal rule or validate an administrative act he may do so only for overriding reasons of general interest and then held that in the case at hand « the financial reasons invoked in support of the validation of the remuneration which was the subject-matter of litigation that was ongoing as of June 18, 2011, which relate to sums of money whose importance has not been established, cannot be regarded as sufficient to warrant such a violation of the rights of those who had initiated legal action prior to said date ».

Constitutional Council Ruling here

Harry Fox helps programme the Androids

The Harry Fox Agency, the US collection society, has said that it is working with Google Play to deliver rights management services for its digital music service for Google's Android devices and the web. HFA’s rights management service, Slingshot, will support Google Play as it taps into HFA’s "comprehensive rights database and publisher relationships to facilitate the licensing of music for use in its music locker and music store". HFA will also provide license administration and process royalty distributions to publishers. Google Play offers digital music, movies, books, magazines, apps and games for Android devices and on the web and with more than 1.3 million new Android devices activated each day around the world its a rapidly expanding market.

HFA collects and licences mechanical royalties and, pre-2002, also licensed synchronisation rights.  It does not administer the performance right, sampling rights or post 2002 the synchronisation rights - where users would need to contact BMI, ASCAP and/or SESAC.  HFA operates Slingshot as a stand alone 'one stop shop' for rights management telling potential customers that they can “obtain and manage all of your licenses, ensuring timely and accurate licensing and increased speed to market.”

Michael Simon, President and CEO of HFA.“HFA continues to forge relationships that join content creators and digital music distributors in win-win opportunities. We are thrilled that Google is developing new music publishing revenue streams and are delighted to streamline their content clearance process so that they can focus on providing their customers with the best service possible,” 

http://www.harryfox.com/public/userfiles/file/PressReleases/Google_PR_20130114.pdf

A job with DACS could be yours, if ...

Note: this post also appears on Art & Artifice

From Atiq Bhagwan (Legal and Enforcement Officer, The Design and Artists Copyright Society -- DACS) comes news that DACS has an opening for a Copyright Adviser. The deadline for submitting applications is 24 January 2013.  The details, as they appear on the DACS website, look like this:

"A challenging opportunity has arisen for a confident and enthusiastic individual to join our high profile legal team as Copyright Adviser. 

DACS is looking for a qualified lawyer with experience in a comparable legal and/or copyright and related rights advisory environment [well, that limits the field a bit!]. A high level of understanding of UK copyright [ditto] and contract law, together with a broad understanding of copyright regimes in operation in other European countries and the importance of copyright law and its significance to creators of artistic works is required [if members of the Court of Justice of the European Union were thinking of applying, some folk might think that this would rule them out too ...]. 

An excellent command of the English language with the ability to communicate effectively in person and in writing will also be a priority. These skills should be coupled with a commitment to excellent customer service and the ability to act with discretion. 

The role will be responsible for providing a well-established telephone based copyright advice service for DACS members, and to provide copyright advice and more general legal advice to other DACS teams and to support the enforcement activities DACS carries out on behalf of members. 

A keen interest in the contemporary art market would be beneficial as well as knowledge of French and/or any other European language".

You can download the application pack here.

Landmark decision on photos and social media?

In what has been hailed by the photography industry as a "landmark decision", District Judge Alison Nathan, sitting in the US District Court of New York, has held that it is an infringement of copyright to use someone else's photos which have been posted on Twitter (see the full decision here). Who would have thought?

Photojournalist Daniel Morel took several photographs of the earthquake which shook Haiti in 2010 which he posted to Twitter, saying that they were for sale. Note that at the time Twitter's Terms of Service made it clear that users retained copyright in their content, and indeed the Terms of Service today say: "You retain your rights to any Content you submit, post or display on or through the Services" (though you do grant Twitter a worldwide, royalty-free, non-exclusive licence to that content).

Morel's photographs were subsequently copied by an individual living in the Dominican Republic, who then sold them to Agence France-Presse (AFP), who then shared them with Getty images. David Morel received no attribution or remuneration for the subsequent use by many media organisations worldwide.

AFP argued that either its conduct must have been licensed or "the uncountable number of daily 're-tweets' on Twitter and in the media where Twitter/TwitPic posts are copied, reprinted, quoted, and rebroadcast by third parties, all could constitute copyright infringements." The District Court explained however that "a license for one use does not equate to a license for all uses".

The US District Court reasonably held that "Construing the Twitter TOS to provide an unrestrained, third-party license to remove content from Twitter and commercially license that content would be a gross expansion of the terms of the Twitter TOS." Therefore AFP and the other media organisations that had used Morel's photographs without permission were liable for copyright infringement and for damages.

Getty argued that it was a service provider and that it should therefore be able to rely on the safe harbor defence provided for in the DCMA. The judge dismissed this argument.

To this blogger it seems clear that poaching content from social media sites is a clear infringement of copyright. So why did AFP take the claim as far as it did? The answer to that question probably lies in the millions of dollars of statutory damages claimed by Morel, on the basis that each illegal reproduction of his photographs by all of Getty's and AFP's members was an individual infringement. The US District Court however held that AFP was liable only once for each alleged "violative act" rather than for every copy of Morel's photos, limiting Morel's damages to between US$ 20,000 and 200,000.

This blogger enjoyed ArsTechnica's analysis:

"At this point, AFP should see that it clearly isn't going to win this case; and Morel should be able to see that he isn't going to become a millionaire because of AFP's mistake. After both parties take a breath and reduce their expectations, they may be able to reach a settlement."

This clearly isn't the "landmark decision" that some are alleging, but is an interesting discussion of the rights attributed to content posted to a social media website.