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On May 2, 2012 the Grand Chamber of the Court of Justice of the European Union rendered a decision (C-406/10 SAS Institute Inc. vs. World Programming Ltd.) regarding the extent of copyright protection conferred to computer programs. Specifically, the decision concerns the interpretation of Articles 1(2) and 5(3) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (OJ 1991 L 122, p. 42), and of Article 2(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

The European Court of Justice concluded, in part, as follows:

1.Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive.

2.Article 5(3) of Directive 91/250 must be interpreted as meaning that a person who has obtained a copy of a computer program under a licence is entitled, without the authorisation of the owner of the copyright, to observe, study or test the functioning of that program so as to determine the ideas and principles which underlie any element of the program, in the case where that person carries out acts covered by that licence and acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner of the copyright in that program.

3. Article 2(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the reproduction, in a computer program or a user manual for that program, of certain elements described in the user manual for another computer program protected by copyright is capable of constituting an infringement of the copyright in the latter manual if – this being a matter for the national court to ascertain – that reproduction constitutes the expression of the intellectual creation of the author of the user manual for the computer program protected by copyright.

SAS Institute Inc., a developer of analytical software, has produced an integrated set of computer programs (hereinafter referred to as the "SAS System") which enables users to carry out a wide range of data processing and analysis tasks, in particular, statistical analysis, wherein a core component of the SAS System enables users to write and run their own application programs (SAS scripts) in order to adapt the SAS System to work with their data. Such SAS scripts are written in a language ("SAS Language") which is particular to the SAS System.

In view of a specific market demand for alternative software capable of executing application programs written in the SAS Language, World Programming Ltd. (WPL) produced the ‘World Programming System’, designed to emulate the SAS components as closely as possible in that, with a few minor exceptions, it attempted to ensure that the same inputs would produce the same outputs. This would enable users of the SAS System to run the SAS scripts, which they developed for use with the SAS System, on the ‘World Programming System’.

For this purpose, WPL lawfully purchased copies of the Learning Edition of SAS Institute Inc.’s program under license terms which restricted the licence to non-production purposes.

SAS Institute Inc. brought an action against WPL Before the High Court of Justice of England and Wales accusing WPL of having copied the manuals and components of the SAS System, which would represent a copyright infringement under the license terms.

The UK High Court of Justice referred the case to the European Court of Justice for a preliminary ruling under Art. 267 of the Treaty on the Functioning of the European Union (TFEU).

In the referral for preliminary ruling, the UK High Court of Justice mentioned that WPL did not have access to the source code of SAS Institute Inc.’s program and did not carry out any decompilation of the object code of that program. By means of observing, studying and testing the behaviour of SAS Institute’s program, WPL reproduced the functionality of that program by using the same programming language and the same format of data files.

The European Court of Justice noted that the object of protection under Directive 91/250 includes the forms of expression of a computer program and the preparatory design work capable of leading, respectively, to the reproduction or the subsequent creation of such a program.

From this the European Court of Justice concluded that the source code and the object code of a computer program are forms of expression thereof which, consequently, are entitled to be protected by copyright as computer programs, by virtue of Article 1(2) of Directive 91/250. On the other hand, as regards the graphical user interface, the Court held that such an interface does not enable the reproduction of the computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.

Moreover, the European Court of Justice concluded that the functionality of a computer program, the programming language and the format of data files used in a computer program in order to exploit certain of its functions do not constitute a form of expression of that program for the purposes of Article 1(2) of Directive 91/250 and are, thus, not protected by copyright as computer programs. However, the European Court of Justice made it clear that, if a third party were to procure the part of the source code or the object code relating to the programming language or to the format of data files used in a computer program, and if that party were to create, with the aid of that code, similar elements in its own computer program, that conduct would be liable to constitute partial reproduction within the meaning of Article 4(a) of Directive 91/250.

The European Court of Justice further concluded that the owner of the copyright in a computer program may not prevent, by relying on the licensing agreement, the person who has obtained that licence from determining the ideas and principles which underlie all the elements of that program in the case where that person carries out acts which that licence permits him to perform and the acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner in that program. Furthermore, a person who has obtained a copy of a computer program under a licence is entitled, without the authorisation of the owner of the copyright, to observe, study or test the functioning of that program so as to determine the ideas and principles which underlie any element of the program, in the case where that person carries out acts covered by that licence and acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner of the copyright in that program.

Download the full text of the decision C-406/10 SAS Institute Inc. vs. World Programming Ltd. of the European Court of Justice under:

http://www.mueller-bore.de/tl_files/Decisions_EPO/EuGH-C_406_10-Judgement.pdf

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