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SAS Institute Inc. (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.
The defendants are 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.
A summary of the CJEU's answers and the High Court's subsequent decision can be found here.
Court of Appeal - appeal dismissed
Last week the Court of Appeal dismissed SAS's appeal. Lord Justice Lewison said:
"Although I disagree with some of the judge's reasoning, those disagreements do not affect the ultimate result. Since the appeal is an appeal against the judge's order rather than against his reasons, I would dismiss the appeal."
Without going through each point in the Court of Appeal's decision as to why they agreed with the outcome if not the reasoning of the High Court, it is interesting to consider Lord Justice Lewison's observations on the intellectual creation test.
The intellectual creation test
Readers may recall that one of the more interesting aspects of Arnold J's decision was his use of the "intellectual creation" test rather than the "skill, labour and judgment" test when considering the originality of a programming language. Assuming a computer language is not a computer program, this implied that the test for originality is harmonised for all works rather than just for computer programs, databases and photographs.
More interesting still, Arnold J 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, clarifying that the 8 categories of protected works set out at s.1(1) CDPA were still relevant: the CJEU's broader definition of a copyright protected work still did not apply in the UK.
The concept of an intellectual creation was discussed in the Court of Appeal's decision at great length. At paragraph 30 Lord Justice Lewison confirms that the CJEU has taken an expression used in one directive ("intellectual creation" which is used in the Software Directive) and applying it to another (the Information Society Directive). It does so, he says, in order to establish "a harmonised legal framework for copyright".
He then goes on to consider what constitutes an intellectual creation. The essence of the term, he says, is that "the person in question has exercised expressive and creative choices in producing the work. The more restricted the choices the less likely it is that the product will be the intellectual creation (or the expression of the intellectual creation) of the person who produced it."
Lord Justice Lewison then says that the test, "intellectual creation" may not be quite the same as the traditional test under English law. He compares the fact that in the UK databases were by copyright as they contain "labour, skills or effort" before the Database Directive harmonised protection. In most European countries databases were not intellectual creations therefore were not protected. Therefore, he says:
"If the Information Society Directive has changed the traditional domestic test, it seems to me that it has raised rather than lowered the hurdle to obtaining copyright protection."
This is an interesting conclusion as many see the "intellectual creation" test generally being broader than the "labour, skill and judgment" test. I would be interested to know which test readers think is broader?
We then go on to application of this test, and to this blogger this is where the judgment has missed a step: we are never told whether the "intellectual creation" test, as it is to be applied in the UK, is the test for originality or the test for a protected work.
By comparing "intellectual creation" with "skill, labour and judgment" it seems that Lord Justice Lewison was referring to the test for originality. This is confirmed by his view that "intellectual creation" is now the test for determining whether a restricted act has been done in relation to a substantial part of a work (i.e. does the part which has been copied contain the author's own intellectual creation?)
Arnold J said at para 34 of his judgment:
"Counsel for SAS Institute argued that the SAS Language was an intellectual creation, and therefore it was a work. In my view that is a non sequitur. As counsel for WPL pointed out, there are many intellectual creations which are not works…"
The Court of Appeal does not address this point therefore the question of whether in the UK all intellectual creations constitute works protected by copyright remains unanswered.
Idea v expression
A short post-script on another copyright dilemma which is considered in the Court of Appeal's judgment: where is the line between an idea and the expression of an idea? Lord Justice Lewison says at para 60 of his decision that "what is critical is not the intellectual creation but the expression of the intellectual creation". He clarifies later that the functionality of a computer program (in the sense of what it does and how it responds to particular inputs) falls on the ideas side of the line.
He also reiterates the lovely reasoning of Pumfrey J in Navitaire Inc v easyJet Airline Co Ltd: 
"Take the example of a chef who invents a new pudding. After a lot of work he gets a satisfactory result, and thereafter his puddings are always made using his written recipe, undoubtedly a literary work. Along comes a competitor who likes the pudding and resolves to make it himself. Ultimately, after much culinary labour, he succeeds in emulating the earlier result, and he records his recipe. Is the later recipe an infringement of the earlier, as the end result, the plot and purpose of both (the pudding) is the same? I believe the answer is no."All that to say that the Court of Appeal agreed with the High Court, and dismissed the appeal, confirming that copyright cannot protect the look and feel of computer programs.
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