Functionality in software is not protected by copyright

I finally managed to read the latest (and hopefully last) instalment of the long legal saga that is SAS Institute v World Programming Ltd. This has been an interesting yet long case that made it all the way to the European Court of Justice, and it deals with several questions regarding software protection, such as whether computing languages are copyrightable, and which software elements can be protected.

SAS is a business software giant that provides business analysis and data processing software and services. One of the main assets held by the company is that it has its own programming language, Base SAS. The language is also combined into separate technical elements which allow consumer interaction, this is know as the SAS Components. All of this allows the company to keep tight control on the programs it creates. While users are allowed to program using this language to fit their own needs, SAS keeps a tight leash on the know-how elements of the equation, particularly training. World Programming Limited (WPL) is a UK software company which saw an opening in the market, it created an SAS clone (knows as WPS) which is able to run programs coded using Base SAS and the SAS Components. It also produced manuals and other supporting materials in order to train users. SAS sued for copyright infringement claiming that WP had directly copied SAS manual materials, and had also infringed copyright by creating its own version of the manuals. SAS also claimed breach of contract because WP had used one of SAS programs contravening the terms and conditions of the licence. The most interesting claim however was that SAS argued that WP built its own clone  using SAS manuals, therefore they had indirectly infringed copyright in SAS Components.

The case was initially decided in favour of SAS in some uncontested points, but Arnold J referred a couple of important questions to the ECJ, the most important of which is whether copyright protects functional elements of a computer program. The ECJ answered negatively, stating categorically that copyright does not protect functional elements. The case was sent back to Arnold J, who ruled in favour of WPL as it was decided that while WPL had infringed copyright by substantially copying some manuals from SAS, it had not infringed copyright by producing its own guides that described functional elements of its own WPS program. The case was appealed by SAS, and now the Court of Appeals has produced a decision.

The question at the heart of the case really is whether it is possible for SAS to claim copyright over the functional elements of their program through their manuals. Lewison LJ answers that question unequivocally:

“The policy underlying both the Software Directive and the Information Society Directive is identical. It would be contrary to that policy if SAS Institute could achieve copyright protection for the functionality of its program indirectly via its manual which simply explains that functionality. Moreover, as the judge pointed out at [253] of his first judgment, the European Commission took the view in its amended proposal for the Software Directive that it was permissible for a third party to use manuals published by the creator of an original program as a source of information about interfaces in order to create an interoperable program and, to that extent, to reproduce the original program.”

Hopefully this will be the end of this interesting series of cases. The relevance for the wider software protection debate is that we have a strong precedent to cement the idea – expression dichotomy in software, where the idea elements of a program implemented through functional aspects are not protected under copyright.

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