I have finally finished reading SAS Institute Inc v World Programming Ltd (the IPKat beat me to it). This is an important software copyright case for many reasons. After a decade of mostly software patent cases in English courts, it is refreshing to see a complex software case where it truly belongs. I believe this might be one of the most interesting software cases in a while, not least because Arnold J has referred most of the important questions to the European Court of Justice.

SAS is a business software giant, but their products are not well known to the public. They provide business analysis and data processing software and services. The company is very successful because it follows a model of providing not only proprietary software solutions to medium and large enterprises, but also the accompanying profitable services, such as support and training. SAS has built this empire based on a combination of proprietary code and business know-how. 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 (WP) is a UK software company which saw an opening in the market, it created an SAS clone (knows as WPS) which would be 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. This last claim is the most interesting from a legal standpoint because it sits at the heart of the many software copyright debates of the last two decades. What exactly is covered by copyright in software?

Let us get the easy legal questions out of the way first. Arnold J found that WP had indeed copied substantial parts of the SAS manuals. Interestingly, Arnold J also had to consider that WP had copied not only substantial parts of the manuals, but had included keywords in their own guides. This is an interesting question, do keywords get copyright protection? Arnold J thought so, but the reproduction of keywords could be considered fair dealing.

The other straightforward legal question was whether WP was in breach of contract. Arnold J found that WP was indeed in breach of some contractual clauses because it had used SAS software to perform actions that were not permitted by the licence.

This brings me to the two interesting legal questions, one deals with interoperability and the other one with what is covered by software copyright.

The interoperability question arose by the claim that WP was infringing SAS Component copyright by creating its own version of the software. In order to do this, WP had to decompile SAS code and make use of Base SAS in order to be able to produce a program that is compatible with SAS programs. It was always clear that WP never copied any SAS code directly, so was there infringement? The Computer Programs Directive 91/250/EEC, the Copyright Directive 2001/29/EC, and the UK CDPA all agree that decompilation is possible for the purposes of interoperability. Similarly, the WIPO Copyright Treaty and TRIPS agree that copyright covers only the expression of an idea, and not an idea itself. There was no doubt that WPS replicated large part of the functionality present in SAS Components, and also used Base SAS considerably in order to operate its own program. However, copyright does not protect functional aspects of software, here Arnold J cites Pomfrey J in the famous Navitaire case. Therefore, Arnold J concluded that WPS was not infringing SAS Component copyright.

The most intriguing legal question in my mind is that SAS claimed that WP had made extensive use of SAS manuals and know-how in order to produce its own software, and therefore was indirectly infringing its copyright. This seems to be one of the points that gave Arnold J some room for thought. The manuals have detailed functional instructions of how SAS Components operate, so would a product that is created by following the instructions set in the manual be infringing the copyright in that manual? Arnold J didn’t think so, but he decided to refer this and other questions to the European Court of Justice for guidance. These questions are:

  • 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.

So, stay tuned, this could turn out to be interesting. My only fear is that by continuing to muddy the waters of software copyright, those who advocate for software patents may have their case strengthened.



Luke Lake · September 6, 2010 at 12:26 am

Copyright protects the "form" of the idea/expression. Syntax of a SAS command/keywords are in a certain form in order to function/execute. Why is this "form" not protected?


    Andres · September 6, 2010 at 2:10 am

    Because functional elements are not covered by copyright, that's what patents are for.


Luke Lake · September 6, 2010 at 2:21 am

Sorry for being pedantic but "what is the UK legal definition of functional?". I would suggest that SAS language syntax is not functional but fits under the AUST copyright principles of form. There is nothing stopping SAS from putting their syntax in whatever strange combination they like but that final combination that SAS decides on has structure, their structure, and is what I would call "form". The weirdo combinations of keywords they can possibly use are functional but the final syntax they have decided on for their product is "form". In the above case, WP would not have had any customers if they had changed the "form" of SAS syntax.


    Andres · September 6, 2010 at 3:56 am

    The definition of functionality in software in the UK is set out in <a href"="http://www.bailii.org/ew/cases/EWHC/Ch/2004/1725.html&quot; rel="nofollow">Navitaire v Easyjet, and it includes functional elements such as syntax (see para 45).

    I am not too familiar with Base SAS, but I am finding it really hard to think of how you can protect programming syntax through copyright law, at least in the UK in light of Navitaire. To me syntax is a functional element. It may be different in Australia.

    Can you give me some feedback about the Australian concept of form? Is it statutory, or case law?

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