Advocate-General’s Gumption Could Keep the ‘Fun’ in Computer Functions

Advocate-General’s Gumption Could Keep the ‘Fun’ in Computer Functions

Advocate-General of the European Court of Justice (ECJ), Yves Bot’s opinion at the end of last year, on SAS Institute Inc. v. World Programming Ltd., was based on the High Court of England and Wales’ preliminary judgment for the same case. Issued on 29 November 2011, Adv.-Gen. Bot focused on specific provisions of Directives 91/250/EEC (the Computer Programs Directive) and 2001/29/EC (the Copyright Directive), ultimately positing that neither the functionalities of computer programs, nor the language a program is coded in, should be capable of being copyrighted under the directives.

In doing so, Adv.-Gen. Bot has reaffirmed Justice Arnold’s preliminary ruling, with respect to the prevention of a monopoly on source and object codes of computer programs by the copyright owner. The opinion refers to the interplay between the two EU directives, their transposition into UK national law through amendments to the Copyright, Designs and Patent Act (1988), and the general adherence of both of the above to Article 2 of the Berne Convention for the Protection of Literary and Artistic Works. As per the facts of the case, the plaintiffs, SAS Institute developed the ‘SAS System,’ a software program that ran on its own programming language, making it impossible for existing clients to run their application programs in any other form without “considerable investment.” To continue using the SAS components required clients to obtain licenses from the SAS Institute. The respondent, WPL Programming had developed software that allowed execution in the SAS programming language, and, according to this press release, also allowed “access and process data stored in SAS's proprietary format, eliminating the need to buy licenses from SAS if users want to develop new functions to analyze their data.”

Even as WPL Programming admitted its intention to follow the functionality of the plaintiff’s program as closely as possible, it denied SAS Institute’s claim of infringement of the overall computer program itself, since it had no access to the latter’s code when designing its own code. Further, previous rulings in the UK courts had also shown that studying a program’s code to determine how it works (decompilation) was not deemed to be an infringement of the owner’s copyright.

While Adv.-Gen. Bot was clear that the protection of computer programs was defined as extending to expression, and not “ideas, procedures, methods of operation or mathematical concepts,” he also mentioned that the legal definition of ‘expression’ with respect to functionality was left open to interpretation, in order to accommodate future technologies within the framework of Directive 91/250. The Advocate-General then deemed that functionalities were ‘dictated by a specific and limited purpose,’ finding them closer to an ideas rather than expression, and hence, not copyrightable. By equating a computer program to a literary work, the opinion also stated that Article 1(3) of the Directive cited originality, and the time, effort and level of skill and judgment invested in the expression as the only criteria to determine copyrightability.

When considering whether the programming language was protectable under Directive 91/250, Adv.-Gen. Bot again drew a parallel between computer programs and literary works, stating that the language the former was written in merely permitted the actual expression, and not being part of the latter, was not copyrightable. With respect to interfaces however, the Advocate-General opined that 91/250 did not preclude these from copyrightability, provided that they formed a substantial part of the expression of the computer program itself. Also, Article 6(1) of the same directive was deemed to be indicative of decompilation of the program by a licensee as being permissible, if it was for the purpose of interoperability. Additional proposed limits included the licensee having to demonstrate “the form of the code for the purposes of interoperability with the elements of his own program,” and ensuring that the original code was not merely recopied.  Finally, Adv.-Gen. Bot referred to Article 2(a) of Directive 2001/29/EC to recommend that certain elements of a computer program could constitute infringement if reproduced in manuals, as long as they were found to be “expressions of the author’s own intellectual creation.”

Though non-binding, the opinion is an influential intermediary move in determining the nature and scope of the copyrightability of computer programs. The ECJ is due to consider the case in 2012, and in the meantime, scholars have already deemed Adv.-Gen. Bot's opinion as a step in the right direction, emphasizing that limited copyright protection is the key to ensure fair monopolization of software programs.

Mekhala Chaubal is a JD candidate at Osgoode Hall Law School.