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Can you copy software without infringement?


The AG recommends that copying functionality without the code is unobjectionable


SAS Institute Inc. (“SAS”) developed analytical software (the “SAS System”) that is an integrated set of programs that enables users to carry out data processing and analysis tasks. A core component of the SAS System is known as the Base SAS. Users can write and run application programs to manipulate data and such applications are written in a language known as SAS language. The language can be extended through the use of additional components. To use the necessary components to run their SAS language application programs, customers have to acquire a licence, and to change a software supplier means rewriting existing applications in a different language, something that requires considerable investment.

World Programming Limited (“WPL”) saw a market for alternative software to improve the functionality of the SAS system, enabling users to run application programs written in SAS language and so created the World Programming System (the “WPL System”). WPL did not hide the fact that they wanted the application programs to perform in the same way on the WPL System as on the SAS components.

SAS brought an action before the referring court, seeking to establish that WPL had infringed their copyright in its computer programs. In doing so, SAS challenged the approach seen in two separate decisions in UK courts (Navitaire Inc v EasyJet Airline Co Ltd (No3) (2004) EWHC, and Nova Productions Ltd v Mazooma Games Ltd (2007) EWCA), which ruled that it is not an infringement of the copyright in the source code of a computer program for a rival to look at the program functions and then write its own program to emulate that functionality or look and feel.

The High Court of Justice, referred a number of questions to the CJEU for a preliminary ruling to clarify the scope of legal protection conferred by EU law, in particular Directive 91/250/EEC, on computer programs.


The questions were essentially, as follows:

‘…Whether the functionality of a computer program and the programming language are protected by copyright under Article 1 (2) of Directive 91/250. That provision stipulates that such protection is to apply to the expression in any form of a computer program and points out that ideas and principles which underlie any element of a computer program are not protected under that directive’.

‘…Whether a ruling on Articles 1 (2) and 6 of Directive 91/250 are to be interpreted as meaning that it is not regarded as an act subject to authorisation for a licensee to reproduce a code or to translate the form of the code of a data file format so as to be able to write, in his own computer program, a source code which reads and writes that file format.’

‘…[What is the definition of] the scope of the exception to the author’s exclusive copyright in a computer program, provided for in Article 5 (3) of Directive 91/250, which states that a person having a right to use a copy of a computer program is to be entitled, without the authorisation of the rightholder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.’

‘[What is]… the scope of the protection provided for in Article 2(a) of Directive 2001/29, which grants authors the exclusive right to authorise or prohibit direct or indirect, temporary or permanent, reproduction by any means and in any form, in whole or in part, of their works. More specifically, the question is whether the reproduction, in a computer program or a user manual, of certain elements described in the user manual for another computer program constitutes, under that provision, an infringement of the copyright in the latter manual.’

The AG’s Opinion

Functionality of a computer program

The AG defined this as ‘the set of possibilities offered by a computer system’, i.e. the service which the user expects from it. AG Bot is clear from the outset that functionalities of a program cannot as such be protected from copyright under Article 1 (1) of Directive 91/250. They are in fact dictated by a specific and limited purpose (he uses the example of a program developed for airline ticket reservations), thus making them similar to an idea. Therefore if it was legitimate for the functions of a computer program to be protected by copyright, it would mean it was possible to monopolise ideas.

However, he points out that the means of achieving the concrete expression of those functionalities may be eligible for copyright protection under the Directive. The way the elements of a program are arranged are likely to reflect the author’s own intellectual creation and may therefore be protected. He concluded on this point that it will be for the national courts to decide whether WPL reproduced a substantial part of the elements of the SAS System, in reproducing the functionalities of the SAS System in its own computer program.

Programming language

The AG’s opinion on the language of the program was that it is a ‘functional element which allows instructions to be given to the computer’. It is made up of words known to everyone – therefore lacking in originality. Therefore it is comparable to the language seen in a novel, making it the means which permits the expression rather than the expression itself, and cannot be eligible for copyright protection under the Directive.

Act of decompilation to achieve interoperability

The AG came down in favour of interoperability. He described it as the ‘ability to exchange information and mutually to use that information between elements of different computer programs.’

In his opinion, WPL was allowed to reproduce the SAS code, or translate the SAS data formatting code into its program to ensure interoperability between the SAS system and its own system. The AG concluded that the holder of a licence to use a computer program may, reproduce the program code or translate the form of the code to write a source code, without the authorisation of the author. This is subject to two conditions: that the act must be indispensible in order to obtain information and it must not allow the licensee to recopy the code of the program (something for the national courts to decide).

Definition of the scope of the exception pursuant to Article 5 (3) of the Directive

Article 5 (3) when read in conjunction with Articles 4 (a) and (b) and 5 (1) is to be interpreted as meaning that the expression of ‘any of the acts of loading, displaying, running, transmitting or storing the computer program’ which the person having the right is entitled to do, relates to the acts for which that person has obtained authorisation from the rightholder. The ‘acts of observing, studying or testing the functioning of a computer program’ under Article 5 (3) must not have the effect of enabling the person having a right to use a copy of the program to access information which is protected by copyright, such as the source or object code.

Protection for the user manual of a computer program under Article 2 (a) of the Directive

The AG states that if certain elements described in a manual for a computer program are reproduced in a computer program or user manual for another, this may constitute infringement of copyright in the first manual, providing the elements are the expression of their author’s own creation, which is again, something for the national courts to decide on.


This is a very important software copyright case and is relevant to authors of computer programs, and potentially any licensors or users of computer programs in Europe. The AG has made it clear that at least in his view, copying the functionality or the language of a computer program, does not constitute copyright infringement. If the opinion is followed by a full decision of the ECJ, the ability of owners of computer software to prevent the functionality of their programs being replicated will be further limited. Other means of protecting their software rights will also have to be considered. As the AG is also in favour of interoperability, computer program developers may need to amend their terms of use to give themselves maximum protection.

For further information, please contact:
Tom Scourfield Tom Scourfield
+44 (0) 20 7367 2707
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