|
Software development:
Europe's top court rules on software copyright
The Court of Justice of the European Union
(CJEU) has delivered its
ruling on the scope of copyright protection
for computer programs. The CJEU has followed the recommendations of
Advocate General Bot set out in his
Opinion issued in November 2011 and confirmed
that:
- There is no copyright in the functionality of
a computer program or the programming language (which is consistent
with previous UK decisions in Navitaire and Nova
Productions). Any ruling to the contrary would hinder
necessary innovation and competition.
- In addition to the source code and object
code, there are other elements of a computer program which may be
protected by copyright. These include preparatory design
materials if the nature of the materials is such that a developer
would be able proceed to develop the source code or object code
from them. The choice, combination and sequence of keywords,
syntax, commands and options might also be protected.
The ruling also clarifies the rights of
software licensees to observe, study and test the licensed software
to determine the ideas and principles that underlie the
software.
Facts
To recap, SAS Institute, Inc. (SAS), a leading
business analytical software developer brought a claim against
World Programming Limited (WPL) for copyright infringement and
breach of contract. WPL developed software capable of executing SAS
applications. Previously, SAS customers were tied to licensing an
SAS system in order to execute these applications. SAS acknowledged
that WPL had not accessed or copied SAS source code to develop its
software. Instead, WPL developers studied SAS manuals and a limited
version of the SAS system called "Learning Edition" and used the
information in these resources to replicate the functionality of
the SAS system. Questions were referred from the UK High Court to
the CJEU seeking clarification on the extent of copyright
protection for computer programs.
The ruling
The ruling focused on three main areas:
1.
The CJEU explored the expression/idea dichotomy and re-confirmed
the principles laid down under the Software Directive (91/250/EEC)
that copyright protects only the expression of an author's own
intellectual creation in a computer program. Protection does not
extend, however, to the ideas and principles which underlie any
element of a computer program, including those which underlie its
interfaces. The CJEU concluded that the functionality of a computer
program and the programming language could not be regarded as the
expression of a program and therefore did not qualify for copyright
protection. A finding in the alternative would make it possible to
monopolise ideas and that would stifle innovation and
competition.
The CJEU went on to state that if a party used
part of the source code or object code of another computer program
to create similar elements in its own computer program, this would
amount to infringement and could be prevented by the software
proprietor.
2.
The CJEU stated that software licensees, provided they observe the
scope of the licence, are entitled to observe, study or test the
functioning of the licensed software to determine the underlying
ideas and principles of various elements of the program i.e. how it
works and what it does. There can be no infringement where a
legitimate licensee, who has not had access to the source code,
simply studies observes and tests the program in order to reproduce
the functionality in its own program. Contractual provisions
seeking to prevent such rights to study, observe and test would be
null and void.
3.
Infringement may occur if a software developer reproduces in its
computer program or a user manual for that program, copyright
protected elements from a competitor's user manual. Whether such
elements attract copyright protection depends on whether the author
has expressed his own intellectual creation. In this case,
the CJEU's view was that the keywords, syntax, commands,
combinations of commands, options, defaults and iterations are all
words, figures or mathematical concepts which, in isolation, do not
constitute the author's own intellectual creation. Instances may
arise, however, where that author does exhibit his own intellectual
creativity through his choice, sequence and combination of those
same words, figures and mathematical concepts.
It will now be up to the UK High Court to
establish whether WPL has copied any elements in the SAS user
manual (given there is no suggestion that WPL had access to or
copied the source code) which are the expression of the author's
own intellectual creation and therefore protected by copyright.
In practice
- While some have interpreted this ruling as an
outright victory for software developers, on closer analysis, this
is not necessarily the case. Even though the ruling means that
software developers can reproduce the functions of a computer
program and the programming language without violating copyright,
they must still exercise caution when creating a competing product
to ensure that they do not reproduce any elements of a computer
program or the user manual for that program that are copyright
protected.
- Software developers will be able to license
third party software and provided they comply with the scope of the
licence, they will be able to observe and study that software in
order to determine its underlying ideas and principles and from
those, create their own software.
- The ruling does not extend software
developers' rights to decompile software however. Developers
can still rely on the exception under Article 6 of the Software
Directive – the "decompilation" exception – that allows code to be
copied or translated for the purposes of enabling an independently
created program to interoperate with another program; but the
exception is narrow and subject to stringent conditions.
- While the ruling confirms that software
developers can reproduce computer program functionality and
programming languages without being caught by the law of copyright,
there is also now wider scope for a software proprietor to be able
to challenge a software developer who, even though he has not had
access to any source code, may have included other copyright
protected elements when replicating the functionality of a computer
program.
Rebecca
Pakenham-Walsh and Emily Parris
are Senior Associate PSLs in the IP
Enforcement and Litigation and Technology and Outsourcing
Groups.
|