In the leading software copyright case of SAS Institute Inc v World Programming Ltd (WPL), the Court of Appeal recently dismissed an appeal by SAS concerning the extent to which copyright protection can be granted to computer software. It confirms that establishing infringement will be difficult unless you can prove there is access to and copying of the source code.
The lower Court judgment of Arnold J is a must-read in the software world and concerns WPL's development of computer programmes that executed application programmes written in the SAS language. In creating the programmes, WPL did not have access to SAS's source code but had studied the SAS manuals and the SAS 'Learning Edition'. SAS sued for a series of copyright infringements relating to both the programme and the manuals. SAS was largely unsuccessful at first instance. It succeeded only on textual infringement of copyright in its manuals.
In the Court of Appeal judgment, a familiar and key distinction is made between an intellectual creation or idea itself and the expression of that idea. Copyright law only protects the expression of the intellectual creation rather than the idea itself. The Court said that the functionality of a computer program was not a form of expression at all.
The Court of Appeal dismissed SAS's appeal against the High Court's judgment although the Court of Appeal disagreed with some of the reasoning used by Arnold J to reach his decision. The end result was however the same.
Interestingly, in its judgment, the Court of Appeal takes a swipe at the Court of Justice of the European Union (CJEU) which had ruled on a reference from the first instance proceedings. The Court of appeal comments that the European court failed to answer all the questions referred to it and the answers it did give were 'disappointingly compressed'. Essentially, the Court of Appeal said that the CJEU answered different questions to the ones that were referred. It may be interesting to see if there is any fall out from this in future interpretations of CJEU decisions.
The author, Richard Binns, is an Associate in the Intellectual Property team at Burges Salmon which is led by Jeremy Dickerson.