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Software: What Exactly Can be Copyrighted?

by Glyn Moody

One of the many arguments against allowing patents for software (alongside the principle argument that software is made up of algorithms, which are essentially mathematics, which is pure knowledge and hence is not patentable) is the fact that software is anyway covered by copyright law. This means that others cannot simply copy your code, just as a novelist cannot simply copy large chunks of someone else's writing. But whether copyright law prevents others from copying the underlying ideas of that code by re-implementing them independently is another matter.

That is precisely the issue at stake in an important case that has just been heard in the English courts. Interestingly, the two parties concerned – SAS Institute Inc. and World Programming Ltd (WPL) – take different views as to the result of that case, as their respective press releases indicate.

Here's WPL's view:

In a legal battle described as ‘David v Goliath’ by industry insiders, SAS Institute claimed that WPL's use of the SAS Learning Edition product when developing its own World Programming System (WPS) language interpreter software was a breach of terms of use and infringed its copyright.

In a High Court verdict handed down today, Friday 23 July, Mr Justice Arnold rejected SAS's claim that WPL's drop in ‘clone’ of the SAS System infringes the copyright in the SAS system or the copyright in SAS's Manuals. In addition, European law protected WPL from breach of SAS’s licence terms where WPL used the SAS Learning Edition to observe, study and test its programming functions when it developed WPS. Following previous UK case law and the EU Software Directive, the judgement reasoned that copyright protects the source code of the SAS system as a literary work which WPL had not copied and that replicating the functions of software, however complex and at whatever level of detail, is not an infringement of copyright.

Here's SAS's take:

Today the High Court of Justice handed down a ruling that World Programming Ltd. (WPL) infringed software developer SAS Institute Inc.’s copyright in its SAS documentation. The court also found that WPL acted outside the scope of its license agreement for SAS Learning Edition software by using that product to develop WPL’s World Programming System (WPS) software. The court referred questions to the European Court of Justice (ECJ) for clarification on whether such use was permitted.

SAS makes two points here. The first is the court's decision that WPL infringed on the copyright in its documentation, which WPL concedes they lost:

The only area in this large and complex case where the judgement went against WPL was that Mr Justice Arnold ruled that the wording of one of the WPS user manuals was too close to the wording of SAS's user manuals although he accepted that WPL's management had policies in place to avoid this happening. WPL will now withdraw and re-write that manual in the light of the findings in the judgement, but this has no impact on WPL's customers or on WPL's ability to supply WPS or support its customers.

WPL is rather more dismissive of the other point, which is actually quite important:

Thanks to the clarity and depth of the court's reasoning, the UK now leads Europe in the interpretation of the EU Computer Software directive. The court will now refer its judgement to the European Court of Justice (ECJ) for that court to confirm its interpretation of the directive at European level.

Whilst a judgement of the ECJ may be three years away, the UK judgement opens the way for WPL to continue innovating and opening new markets.

The result of that eventual ECJ ruling, which could still go either way, will have huge implications for software in Europe – not least free software. That's because the issues that this case raises really go to the heart of what can and cannot be protected in software through copyright.

Next: The judgement

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