A reminder of the factsSAS 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.
The CJEU's answersIn responding to the High Court's questions on the interpretation of the Software Directive and the Information Society Directive, the CJEU held that:
The High Court's decisionSo, 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.
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.