SAS v. WPL case
Case C-406/10 SAS Institute Inc. v
World Programming Ltd
M. MARKELLOU
Ionian University
CERDI 9-14.07.2012
BACKGROUND
SAS Institute developed a suite of
integrated computer programs (SAS
System)
SAS System: users can write&run thein
own scripts in the SAS programming
language
BACKGROUND
WPL created a competing programme (WPS)
WP System: SAS users could migrate their
scripts to WPS, they could run them on WPL
alternative interoperable platform
SAS attacked WPL for CR infringement
BACKGROUND
The High Court of England & Wales
referred more than 9 preliminary questions
to the CJEU
A fact : WPL had neither seen nor copied
the source code of SAS components nor
its structural design, and had not
decompiled the SAS System's object
code.
QUESTION 1: the functionality of a
computer program, its programming
language and the format of its data files
may constitute a form of expression of a
computer program, and may therefore be
protected by copyright under the
Software Directive ?
CJEU : No BUT they may be under
InfoSoc Directive
Point 35 : ” (..) the Court interpreted Article 1(2)
of Directive 91/250 as meaning that the object of
the protection conferred by that directive is the
expression in any form of a computer program,
such as the source code and the object code,
which permits reproduction in different computer
languages (judgment of 22 December 2010 in
Case
C-393/09
Bezpečnostní
softwarová
asociace [2010] ECR I-0000, paragraph 35)”
Point 39 : ” (..) neither the functionality of a
computer program nor the programming
language and the format of data files
used in a computer program in order to
exploit certain of its functions constitute a
form of expression of that program for
the purposes of Article 1(2) of Directive
91/250.”
Point 45 : “ The Court also points out that
the finding made in paragraph 39 of the
present judgment cannot affect the
possibility that the SAS language and the
format of SAS Institute’s data files might
be protected, as works, by copyright
under Directive 2001/29 if they are their
author’s own intellectual creation (...)”
QUESTION 2: a lawful user of a computer
program may study, observe and test that
program as long as he does not infringe
the exclusive rights of the owner of the
copyright in the program ?
CJEU: Yes
Point 61: “ It must therefore be held that the
copyright in a computer program cannot be
infringed where, as in the present case, the
lawful acquirer of the licence did not have
access to the source code of the computer
program to which that licence relates, but
merely studied, observed and tested that
program in order to reproduce its functionality
in a second program.”
QUESTION 3: the reproduction, in a
computer program or a user manual for
that program, of certain elements
described in an earlier user manual
constitutes an infringement of the
copyright in the earlier manual ?
CJEU: It is for the national Court to
determine this
Point 66. “ In the present case, the
keywords,
syntax,
commands
and
combinations of commands, options,
defaults and iterations consist of words,
figures or mathematical concepts which,
considered in isolation, are not, as such,
an intellectual creation of the author of the
computer program.”
Point 68 : “It is for the national court to
ascertain whether the reproduction of
those
elements
constitutes
the
reproduction of the expression of the
intellectual creation of the author of the
user manual for the computer program at
issue in the main proceedings.”
COMMENTS...
What is a programming language ?
A high – level language (C++, Java, RUBY …)
A predefined set of commands (‘complex’
commands)
A defined set of syntax rules for the execution of the
program
A functional tool which allows instructions to be given
to the computer
The means that permits expression to be given, not
the expression itself
COMMENTS...
the CJEU does not clarify the situation by holding that a
programming language is an element that is not eligible for
CR protection under the Software Directive BUT it could be
under the InfoSoc Directive …provided that the
requirement of author’s own intellectual creation is fulfilled
(Infopaq Case, Bezpečnostní softwarová asociace Case)
Risque of creating a monopoly restrictions on
interoperability
Risque of undermining innovation and competition in the
software industry
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