Earlier this year Mr Justice Arnold made an epic reference to the European Court following his epic judgment in SAS v World Programming. The questions are about whether computer program functionality, programming languages and interfaces are protected by copyright. It is in the nature of laborious tasks that they have a propensity to become ever more laborious and SAS on considering their answers to the questions found the questions lacking and applied for them to be redrafted. No, said the judge in today's judgment - even though the European Court might accept amendments.
Firstly, he was doubtful that it would be a proper exercise of the power conferred by CPR r. 31.1(7) to vary the Order. Secondly, amending the questions at this point would mean Member States, who are busily preparing their answers to the questions, would have to start all over again (once the questions had been retranslated). Thirdly, he believed the existing questions were adequate for the parties to present their arguments to the Court of Justice.
This is irresistible logic. However, the most significant proposed change is worthy of note. Having asked whether replicating a computer program's functions infringes copyright (which is going to invite the answer 'no'), SAS wanted to add: would it make a difference if the selection of certain operations, formulae, commands, syntax, defaults, iterations were copied. Although these points can certainly be addressed within the context of the existing questions, they do highlight a key issue. These are features that arguably belong to the design of the program, not just its functionality, and it is design (structure, sequence and organization) that can potentially attract copyright protection.