Software Functionality Or Language Not Protected Says ECJ

Author:Van Bael Bellis
Profession:Van Bael & Bellis
 
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On 2 May 2012, the Court of Justice of the European Union ("ECJ") delivered a preliminary ruling in the case pitting SAS Institute Inc. ("SAS") against World Programming Ltd. ("WPL"). The ECJ held that neither the functionality of a computer program, nor the programming language and the format of data files used in a software program enjoy copyright protection. SAS is a developer of analytical software which enables users to carry out data processing and analysis tasks, in particular statistical analysis. The SAS software also enables users to write and run their own application programs in order to adapt the SAS system to work with their data. The scripts for such application programs are written in a language which is peculiar to the SAS system. WPL developed an alternative software capable of executing application programs written in the SAS language. The WPL system emulated the SAS system and would allow users to run scripts for the SAS system on the WPL system. SAS brought an action before the High Court in the UK, in which it accused WPL of infringing its copyright as well as the terms of the SAS license. The High Court referred a number of questions to the ECJ on the interpretation of EU rules on the protection of software. First, the ECJ was requested to determine whether the functionality, the programming language and the format of data files used in a computer program in order to exploit certain of its functions are protected under Article 1(2) of EU Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (the "Software Directive"). Article 1(2) of the Software Directive determines that the expression in any form of a computer program is protected. In contrast, the ideas and principles that underlie any element of a computer program are not protected. According to the ECJ, neither the functionality of a computer program, nor the programming language and the format of data files used in a computer program to exploit certain of its functions constitute a form of expression of that program for the purpose of Article 1(2) of the Software Directive. Accordingly, these elements are not protected as such. However, even if the language that has been created is not protected as such, the use of the language in the source code can be protected if this use satisfies the originality requirement. The ECJ pointed out that "the SAS language and the format of SAS's data files might be protected by copyright [...] if they are their...

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