Brussels, 30/11/2011 (Agence Europe) - According to the conclusions returned on Tuesday 29 November by the advocate general (Case C-406/10), the functionalities of a computer programme and the programming language cannot be protected by copyright. The source code of a programme may, if certain conditions are met, be reproduced in order to ensure interoperability with another programme.
The matter was brought before the Court of Justice of the EU in a case in the United Kingdom between the American software publisher SAS Institute and the British publisher World Programming Limited (WPL). SAS Institute developed the SAS system for data processing and analysis tasks, particularly statistical analysis. It permits users to write and run application programmes known as scripts, written with SAS programming language. With World Programming System, WPL designed a system which largely emulates the functionalities of SAS components and allows clients to run scripts written in SAS language. SAS Institute felt that this violated its copyright.
Advocate General Yves Bot pointed out that the protection conferred by the directive of 14 May 1991 concerning the legal protection of computer programmes applies to all forms of expression of a computer programme rather than to the ideas and principles which form the basis of any element of a computer programme. In this way, the advocate general took the view that the protection of a computer programme applies to the literal elements of that programme - in other words the source code and the object code - but also to any other element expressing the creativity of its author.
Functionality. Bot takes the view that the functionalities of a computer programme - the service - are not eligible for copyright protection: “if you accepted that a functionality of a computer programme can be protected as such, that would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development”, he argued. However the means for achieving the concrete expression of the functionalities of a programme may be protected by copyright (creativity, skill and inventiveness, which are matters of intellectual creation). The national judge in this case will have to rule on this specific point. The advocate general is now of the opinion that, as with other works which may be protected by copyright, the fact of reproducing a substantial part of the expression of the functionalities of a computer programme may constitute a violation of copyright. In this matter, the advocate general takes the view that the national judge would have to verify whether, by reproducing the functionalities of the SAS system in its computer programme, WPL reproduced a substantial part of the elements of the SAS system which are the expression of SAS Institute's own intellectual creation.
Language. Bot is of the opinion that it cannot be protected as such by copyright. “Since programming language is an element which allows instructions to be given to the computer, it must be compared, for example, with the language used by the author of a novel.”
Was WPL entitled to reproduce the SAS code? The advocate general takes the view that, subject to conditions, the holder of a licence to use a computer programme may, without the author's authorisation, reproduce the programme code or translate the form of the code of a data format in that programme so as to write, in his own computer programme, a source code which can read and write that data format. First, that operation must be absolutely indispensable for the purposes of obtaining the information necessary to achieve interoperability between the elements of the various programmes. Second, that operation must not have the effect of enabling the licensee to recopy the code of the computer programme in his own programme, a question which it will be for the national court to determine. In the majority of cases, the Court of Justice goes along with the opinion of the advocate general. It will return a ruling at a later date. (LC/transl.fl)