SAS Institute’s basic program was developed way back in the 1970’s, with the company being launched in 1976. Their program offered, then, unparalleled tools for statistical data analysis. It has since gone on to become one of the world’s leading software platforms for such analysis and therefore it is without doubt the work SAS Institute has done since the 1970’s make SAS Institute a Visionary Innovator in the field of statistical data analysis. The SAS program was not interoperable with other programs, meaning that those SAS clients who wished to terminate their use of the program risked losing access to the data they had input into it.
However, World Programming Limited (WPL) developed a “drop-in” replacement for the SAS programme. This as intended to work with SAS to use SAS data. It was also to operate at a lower cost than SAS. The subsequent dispute between SAS and WPS (SAS Institute Inc. v World Programming  EWHC 1829 (Ch)) is now the leading UK case on copyright in software. This blog focusses on the impact on copyright as the legal protection for developers of software rather than being a full summary of the entire case. It is important because it confirms the limits and challenges for those enforcing copyright infringement against their increasingly sophisticated competitors.
In creating its “drop-in”, WPL used various SAS sources including the SAS manuals and a training version of the software and in creating its replacement, WPL copied elements of the SAS programming language and interface. It did not have access to or directly copy the source code although elements of the source code were incorporated into the SAS manuals. Question: could WPL infringe the copyright in the SAS program without copying the source code? This involved a discussion as whether other elements of the SAS program attracted copyright including, (i) the programming language; and (ii) the interface.
THE JUDGMENT AND THE COURT OF JUSTICE OF THE EUROPEAN UNION REFERENCE
This case was decided in the High Court of England & Wales by Justice Arnold, but due to the questions which arose certain of the questions it raised were sufficiently difficult to refer them to the Court of Justice of the European Union (“CJEU”). Attorney General Bot (“AG Bot”) recently gave his opinion confirming many of Justice Arnold’s positions. Although AG Bot’s opinion is not binding, it is often followed by the CJEU, we still await this confirmation.
Could WPL infringe the copyright in the SAS program without copying the source code?
Short Answer: In theory, yes. In Attorney General Bot’s opinion not only source code or object code but also any other element of the software which expresses the creativity of the author could be protected by copyright. However Arnold J’s judgment and the Attorney General’s opinion have considered other elements of the software not to be protectable these include:
A: Programming Language So far, the case has confirmed that programming language will not be protectable. Attorney General Bot’s opinion described programming language as analogous to natural language in that it is not the individual words to which the author’s copyright attaches but rather to the selection and compilation of the same. In his opinion a programming language would not be protectable by copyright.
B: Interfaces Both Justice Arnold and AG Bot appear to be making a distinction between (a) graphical user interfaces (“GUI”); and (b) functional interfaces. GUI may be protected by copyright, whereas interfaces would not be.
More Likely to Be Protected
Less Likely to be Protected
In this distinction we see an echo of the copyright’s traditional principle that it protects the expression and not the idea.
As a software developer or owner if you suspect someone of copying your software this will have to go beyond copying the functionality, purpose, or even commands to amount to copyright infringement. In many cases the most (and only) convincing way to establish an infringement is through showing that the copier had access to your source code. Embedding deliberate errors or unnecessary code can be useful to show copying of code will be one way of doing this. However, this ignores the fact that for most developers the source code will not be made easily available. If it is placed into the third party possession this is likely to be under an escrow agreement which guarantees its continued confidentiality save under specific circumstances. This is where the analogy with other literary works (like books) breaks down because in a book, the “source code” is the author’s manuscript. In contrast with software source code the manuscript is always visible in the completed work.
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