In the first instance decision, Arnold J found that WP had copied substantial parts of the SAS manuals, including keywords and other vital components. However, Arnold J did not rule on the interoperability question, namely that World Programming had to decompile large parts of SAS object code in order to create its own clones of the software. These questions then were referred to the ECJ:

• Does copyright in computer programs protect programming languages from being copied?
• Does copyright in computer programs protect interfaces from being copied where this can be achieved without decompiling the object code?
• Does copyright in computer programs protect the functions of the programs from being copied?
• Arnold J required interpretation of several articles in both the Software Programs Directive and the Copyright Directive.

A few days ago Yves Bot, the Advocate General of the ECJ, produced an opinion in the case which seems to favour World Programming and interoperability.  For those unfamiliar with ECJ procedure, the Advocate General’s opinion is not a decision, it simply gives an overview of the case for the justices, and the Court may ignore it altogether, but generally influence the final result. The Advocate General broke down the referred questions into several main issues. To me the most important question is precisely whether the functional element of a computer program protected by copyright. The AG put it this way:

“First, by questions 1 to 3, the referring court asks, in essence, whether Article 1(2) of Directive 91/250 is to be interpreted as meaning that the functionalities of a computer program and the programming language are regarded as the expression of that program and thus qualify for the copyright protection provided for by that directive.”

Mr. Bot goes through the basics of software copyright. He reminds us that copyright does not protect ideas, but the expression of an idea, and while copyright does not only protect literal elements of software, he clearly states that “the functionalities of a computer program cannot, as such, form the object of copyright protection”. Furthermore, the Advocate General analyses whether a computer programming language can be subject of copyright protection. He states that:

“69. As we have seen, a computer program is first compiled in the form of a source code. That code is written in a programming language which will act as a translator between the user and the computer. It enables the user to write instructions in a language that he himself understands. The referring court explains that SAS language consists of statements, expressions, options, formats and functions expressed in tokens, that is to say, strings of characters used in accordance with certain conventions. One of the main types of token in SAS language is names, for example, LOGISTIC and UNIVARIATE. The referring court adds that SAS language has its own syntax and keywords.[...]
71. It seems to me, therefore, that programming language is a functional element which allows instructions to be given to the computer. As we have seen with SAS language, programming language is made up of words and characters known to everyone and lacking any originality. In my opinion, programming language must be regarded as comparable to the language used by the author of a novel. It is therefore the means which permits expression to be given, not the expression itself.
72. Accordingly, I do not think that it can, as such, be regarded as the expression of a computer program and thus be eligible for copyright protection under Directive 91/250.”

It is always a pleasure to read good legal opinions, of which this is one great example. So, computer languages are functional in nature, and therefore they cannot be protected under copyright. Mr Bot then goes on to analyse the extent of interoperability in software. The issue was “whether, under Article 6 of Directive 91/250, WPL was entitled to perform an act of decompilation in order to achieve interoperability between the SAS System and its WPL System.” He believes that World Programming was indeed able to decompile to achieve interoperability. He states in his conclusion:

“Article 5(3) of Directive 91/250, read in conjunction with Articles 4(a) and (b) and 5(1) thereof, is to be interpreted as meaning that the expression ‘any of the acts of loading, displaying, running, transmitting or storing the computer program [which the person having the right] is entitled to do’ relates to the acts for which that person has obtained authorisation from the rightholder and to the acts of loading and running necessary in order to use the computer program in accordance with its intended purpose. Acts of observing, studying or testing the functioning of a computer program which are performed in accordance with that provision must not have the effect of enabling the person having a right to use a copy of the program to access information which is protected by copyright, such as the source code or the object code.”

Hopefully this opinion will be carried by the court when they decide the case. On a more shallow note, I love the name Bot, I would have lots of fun with that name messing up Turing tests. “Are you a bot? Yes, as a matter of fact I happen to be a Bot”.

Now sit around and listen, if you may, the curious case of the Costa Rican ACAM (Asociación de Compositores y Autores Musicales ). This is your typical collective copyright management society, it gathers national artists and collects royalties from the usual channels, such as radio, commercial establishments, and live performances (chivos, as they’re popularly known here). ACAM is part of an international network of collecting agencies, so it can collect money from artists and then send it to their international associates, who will then distribute them to the composers and musicians in other parts of the world. So far so good.

However, performance rights are a tricky part of copyright enforcement. We tend to think of copyright as a monolithic right, but nothing is further from the truth. Singer-songwriters are easy, they write, compose and perform their own creations, so copyright management in those cases is also less complicated because there is only one owner. But potentially, any given song has several copyright owners, the composer, the lyricist, the performer, the producer, and let’s not even go into other areas such as sound recordings. This is where rights can get Byzantine rather quickly, and it is one of the reasons why music licensing in general is a very specialised area of the law.

I was reminded of this complexity when I read that a concert in Costa Rica by the famous Mexican singer José José is in danger of being cancelled because of copyright issues. ACAM has requested to the authorities that they should not allow the concert to go ahead because the organisers have not paid royalties to the society. Yes, you heard correctly, ACAM argues that a singer cannot perform his own songs because they must pay copyright fees to the Costa Rican collecting society. They base their legal argument on article 50 of the Costa Rican copyright law (Ley 6683), which reads (my translation):

“ARTICLE 50 .-  Authorities shall not allow public performances or hearings without the user displaying the program in advance, indicating the works to be performed and the names of the authors. Also, it must display the receipt attesting payment of the remuneration of copyright holders where applicable. If the show is a reproduction of phonograms, the program must also contain the names of the performers.
Where appropriate, the user shall also produce the receipts for related rights.”

The article is proportionate and consistent with international practice with regards to performance rights. However, ACAM seems to be asking something more than the law requires. The law simply states that artists must show receipt to copyright owners “where applicable”. My own thinking of the reason behind this is that it applies to artists performing covers. But what about an artist who performs his own songs? Must the organisers pay royalties as well? This is not only blatantly unfair, but reeks of a copyright racket.

The only reason I can think of for this behaviour is if José José didn’t compose his own songs and the money collected by ACAM would eventually make its way to the composer, but I would be very surprised if there was not an agreement allowing him to perform these songs. Moreover, ACAM’s own FAQs appear to be rather confusing in this respect. Answering the question “Where does the money collected go?”, they answer:

“The money goes to the income of each author, based on the use made ​​of his work in different ways. Of the total raised, up to 30% is left as an administrative expense to SGAE and 7% goes to fund social and cultural solidarity.”

Wait a second… SGAE? (insert multiple exclamation marks). I can only see two reasons for the mention of SGAE here, either it is the international representative for ACAM, or whoever wrote the FAQ simply lifted the entry from SGAE’s own FAQ and forgot to replace the name of the collecting agency. Either explanation does not look good, to put it mildly.

I believe in collecting management. Artists have a right to earn a living, and these are one manner of organisation which makes it easier to collect money around the world. But irrational money-grabbing like the example cited above does not help the cause of legitimate copyright owners, and when their actions threaten an event that benefits a legendary figure of Latin American music and his loyal fans, one has to wonder who really profits from these practices. Copyright owners have to improve their image, this does not seem to be the best way of doing it.

Update: ACAM continues to state that it requires payment in advance before the concert takes place, while the organisers are saying that they will make the payment afterwards. The news article in La Nación doesn’t ask the most important question here, is ACAM legitimised to ask for money in this case?

Update 2: After making a big show of force, ACAM allowed the concert to go ahead. I still do not think that the fundamental question has been answered here.