Member Article

It’s well known that computer programs enjoy copyright protection - many have  also been patented, but that’s another story and I’m not going to deal with that here. The South African Copyright Act has protected computer programs as a specific category of works since 1992, although prior to that they were protected as ‘literary works’. A computer program is defined in the Act  as ‘a set of instructions fixed or stored in any manner and which,when used directly or indirectly in a computer, directs itsoperation to bring about a result.’ The owner of the copyright in a computer program has theexclusive right to do variousthings, for example to reproduce, adapt or rent out (licence) theprogram. There area few limitations to the copyright owner’s rights, for example, a person who is in lawful possession of a computer program (a licensee) can make back-up copies for personal use, provided that the copies are destroyed when the licence ends.

But does this protection extend to a computer language?This  issue came up in a UK  decision recently, the case of SAS Institute Inc. v World Programming Ltd (2013) EWHC69 (Ch) and, in the course of the proceedings, a number of legal issues were referred to the Court of Justice of the European Union for advice.  The facts were thata company called SASInstitute created a very successful analyticalsoftwaresystem which it called SAS, andwhich was basically an integrated setof programs used for statistical analysis.  The main aspect of the system was called Base SAS, but there were further components too. Users of the SASsoftware were able to write their own apps in SAS language, provided that they took a licence.  If an SAS userever wanted to change to another software supplier it would have to rewrite all its apps in anotherlanguage, so World Programmingsaw a market for software to execute SAS-based apps for use elsewhere. World Programming thereforedevelopeda product called World Programming System (WPS) which emulated much of the functionality of the SAScomponents.

SAS Institute sued WPS for copyright infringement, claiming that WP had infringed copyright, both by creatingthe WPSproduct and by producing a user’s manual that looked quite similar to the SAS manual.  There were quite a few facets to this matter and I’m simply going to concentrate on the most interesting ones. The court upheld the claim that the WPS manual infringedthe SASmanual, but the court dismissed the more important claimrelating to the WPS product.

In the process the court went back to copyright basics, one of which is the so-called ‘idea/expression dichotomy’, which basically means that copyright does not protect ideas but simply expressions of ideas.  In the EU there is a Software Directive that regulates copyright in computer softwareand the court approved of this earlier interpretation of that directive.‘Protection in accordance with this Directive 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.’

Applying this thinking to the case, the court said that, although a computer program enjoys copyright,  the law only protects the expression (in any form) of that program, for example  the source code or the object code.  It does not, however,   protect the functionality of the program,or the format of the data files (the interface),or the computer language,  because these do not form an expression of that program. To hold otherwise would be to make it possible to monopolise  ideas.

The court emphasised that if a third party were to get hold of the source code or object code and then create similar elements in its own program that would be an infringement, but that was not the case here. It was quite clear that what WPS had done was simply reproduce the functionality of SASthrough observation and inspection. Something that the EU Software Directive expressly allows, when it says this:  ‘The person having a right to use a copy of a computer program shall be entitled, without the authorisation of the right­ holder, 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.’

Dealing with the issue of whether a programming language is in fact a work that can enjoy copyright, the judge thought not and did what most lawyers who grew upbefore the computer age do in situationslike this: he used old-world analogy. He said this:  ‘A dictionary and a grammar are works which describe a language. Such works record, and thereby fix, the elements of the language they describe: the meanings of the words and its syntax. It does not follow that the language is  a work. Rather the language is the material from which works (including dictionaries and grammars) may be created.'

This issue has never come before our courts.  Until it does, this UK judgment will, I think, be persuasive.

VICKY STILWELL: Director in ENS’ IP Department ([email protected])