If you think software patents are a pain, try software copyrights

The judges who sit in the Court of Justice of the European Union must by now be thinking that the only way to stop Mr Justice Arnold sending them questions to answer is to have him appointed as a colleague. If you don't think so too, consider the case of SAS Institute Inc v World Programming Ltd [2010] EWHC 1829 (Ch), a Chancery Division (England and Wales) decision of Mr Justice Arnold, which was handed down last Friday, 23 July. It's a real whopper, too, the sort of judgment you'd expect on a complex topic on which the parties spent 12 days arguing with one another in court.

In short -- if that word is ever applicable to a decision of this length -- SAS developed its own SAS analytical software system, this being an integrated set of programs that enabled users to perform a wide range of data-processing and other tasks, and especially statistical analysis. The IPKat isn't surprised that it could do lots of tricks, since it had been around for some 35 years, generating income for SAS in excess of £2 billion. At its heart was "Base SAS", which let users write and run application programs ("scripts"), written in SAS language, in order to manipulate their data.

Base SAS's functionality could be extended by using additional components -- in this case SAS/ACCESS, SAS/GRAPH and SAS/STA. Over the years, SAS's customers had created thousands of apps in the SAS Language -- some were short and simple, while others were vast. Anyone wanting to run their existing apps or create new ones had to take a licence to the SAS components. Other suppliers of analytical software existed in the market, but anyone wanting to change to another software would have to rewrite all its apps in another language, which would be a pain (and an expensive one, too).

World Programming ('WorldProg'), spotting the huge potential market for software to execute SAS-based apps for use elsewhere, developed World Programming System (WPS) -- which inevitably emulated much of the functionality of SAS's components in order to ensure that they worked the same. It was not alleged that WordProg had access to SAS's source code or copied it, or even that it copied any of the structural design of the components' source code. WordProg also created a WPS manual, which described the functionality of various elements briefly by reference to syntax diagrams, plus a set of WPS guides --four quick reference guides which simply listed elements of the SAS language and indicated whether the current edition of WPS supported it.

In September 2009 SAS commenced proceedings, alleging copyright infringement in its software and in its own manuals, as well as breach of SAS's licence terms with regard to the Learning Edition of the SAS System.

Remarkably, the case came to trial as early as this June and, having devoured a vast quantity of raw law as well as legal submissions and complex facts, Arnold J ruled as follows:

* Computer programs were protected by copyright just like any other literary works within the meaning of the Berne Convention by Article 10(1) of TRIPS, Article 4 of the WIPO Copyright Treaty and Article 1(1) of EU's Software Directive, subject to ant specific exceptions to the contrary.

* Both Article 9(2) of TRIPS and Article 2 of the WIPO Copyright Treaty distinguished between 'expressions' -- which are protected by copyright -- and 'ideas, procedures, methods of operation and mathematical concepts as such', which are not.

* United Kingdom courts must interpret both the Software Directive and domestic law in conformity with TRIPS and the WIPO Copyright Treaty, both as a matter of EU law and under domestic law. Accordingly, they have to protect 'expressions' as copyright works, but not 'ideas, procedures, methods of operation and mathematical concepts as such'. For this reason it is necessary to distinguish between the two, the former being protected by copyright and the latter belonging to the public domain.

* Skill, judgment and labour in devising ideas, procedures, methods of operation and mathematical concepts are not protected by the copyright in a literary work but skill, judgment and labour in devising the form of expression of the literary work are.

* Pumfrey J could not be said to have erred in Navitaire v easyJet (noted briefly by the IPKat here) when he concluded that programming languages were not copyright-protected. His distinction between a [copyright-protected] computer program and the language it was written in was, despite his hesitancy on the point, consistent with the distinction between expression and ideas, procedures, methods of operation and mathematical formulae.

* Under Article 1(2) of the Software Directive, "Protection ... shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive". The correct interpretation of this provision in relation to computer languages and interfaces was not acte clair and would therefore need a reference to the Court of Justice of the European Union to establish what it actually meant.

* Assuming that Pumfrey J in Navitaire was right (and the Court of Appeal in Nova v Mazooma was happy enough with his decision), WorldProg hadn't infringed SAS's copyrights anyway.

* It was not an infringement of the copyright in a manual describing certain functions to use that manual as a specification of those functions that needed replication and, to that extent, to reproduce the manual in the source code of the new program. This too was not acte clair, though.

* If Article 2(a) of the Information Society Directive is to be interpreted in the same way as Article 1(2) of the Software Directive, WorldProg didn't infringe copyright in SAS's manuals by producing or testing its own WPS product.

* There was no breach of licence. If any of SAS's licence terms for its Learning Edition were contrary to Article 5(3) of the Software Directive, they would be void. Here too, the interpretation of Article 5(3) was not acte clair.

* On the facts, some of the bits of WorldProg's manuals copied text that expressed the intellectual creation of the authors of SAS's manuals, so some copyright infringement had indeed taken place -- but there had been no infringement in respect of WPS's guides, where similarities had occurred through the accretion of key terms.

Says the IPKat, if I'm right there are going to be five sets of questions referred for preliminary rulings ...

SAS here and here