ECJ Judgement “SAS” on the protection of computer languages
Several of our clients are in the software industry. That’s why in Salvador Ferrandis and Partners we have paid a lot of attention to the Judgement adopted by the Court of Justice of the European Union (CJUE) in 2 May 2012, in Case C-406/10, in which the confronted parties were SAS Institute Inc and World Programming Ltd (WPL), one of its market competitors.
SAS Institute Inc has developed during the last 35 years a series of computer programs (SAS System) that allows its users to carry out data processing and analysis tasks. The main component of SAS System is Base SAS, a software that allows users to write and run their own application programs (called “Scripts”) in order to adapt the SAS System to work with their own data. Such Scripts are written in a language which is peculiar to the SAS System (‘the SAS Language’). Since the SAS System soon became a success, WPL used the SAS Language to design its computer program “World Programming System” (WPL). According to the CJUE Judgement “WPL emulates 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 Scripts which they have developed for use with the SAS System on the ‘World Programming System’.
The SAS Institute Inc brought a lawsuit against WPL for copyright infringement because the latter copied the SAS Language to develop its own software.
The case was referred to the CJUE for a preliminary ruling regarding interpretation of Arts. 1(2) and 5(3) Directive 91/250 on the legal protection of computer programs, and of Art. 2(a) Directive 2001/29 on copyrights in the Information Society. The national court asked: (i) whether the functionality of a computer program is a form of expression that deserves to be protected, in the light of Art. 1(2) Directive 91/250; (ii) to what extent the licensee of a computer program is entitled, without authorization of the copyright holder, to carry out acts, such as study or test the functioning of a computer program, according with art. 5(3) Directive 91/250 and (iii) if the reproduction of the user´s manual, devised for the copyrighted computer program in question, constitutes a copyright infringement.
In relation to article 1(2) Directive 250/91, the CJUE declares that neither the functionality of a computer program, nor the language devised for it and the format data files constitute a form of expression protected under the Directive. The CJUE ruling follows the interpretation given by the Advocate General, in the sense that the creator of a computer program cannot stop others from using those “functions” because by doing so, the creator would be given a monopoly over extremes that exceed the application of Directive 91/250.
Regarding the interpretation of art. 5(3) of the same Directive, it must be noted that the assertion made by the CJEU does not clarify much, as it basically quotes it from the Directive. In this sense, the interpretation that must be made of art. 5(3) is that the study and test of the functioning of the program are not forbidden, if done while performing any of the acts of loading, displaying, running, transmitting or storing the program” as far as these acts are performed for a purpose covered by the license or those acts are permitted by arts. 4 and 5 of the Directive.
Finally, and regarding the interpretation of art. 2(a) Directive 2001/29 in relation to the reproduction of the user´s manual, the CJUE states that such an act “constitutes copyright infringement if the reproduction constitutes the expression of the intellectual creation of the author of the user´s manual for the computer program protected by copyright”.
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