Opinion of the General Advocate Bot on copyright and protection of softwares

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In Advocate General Bot’s view, the functionalities of a computer program and the programming language cannot be protected by copyright The source code of a program may, if certain conditions are met, be reproduced in order to ensure interoperability with another program

SAS Institute Inc. has developed an integrated set of programs which enables users to carry out data processing and analysis tasks, and in particular statistical analysis. The core component of the SAS System is known as Base SAS. It permits users to write and run application programs (also known as “scripts”), written in SAS programming language and enabling users to manipulate data. The functionality of Base SAS may be extended by the use of additional components.

When SAS Institute’s customers wanted to run their SAS Language application programs or create new ones, they had, as a rule, no alternative but to continue to acquire a licence to be able to use the necessary components in the SAS System. A customer wishing to change software supplier would need to re-write its existing application programs in a different language, which requires a considerable investment.

World Programming Ltd (WPL) perceived that there would be a market for alternative software which would be able to execute application programs written in SAS Language. It therefore created a product called World Programming System (WPS) to do this. WPS emulates much of the functionality of the SAS components, the aim being that customers’ application programs should run in the same way on WPS as on the SAS components. In addition, to enable its program to access and process data previously stored by the customer in the SAS format, WPL has designed its program in such a way that it can understand and interpret that data format to ensure interoperability between the two programs.
Although there is no suggestion that WPL had access to, or copied, the source code1 of the SAS components, SAS Institute brought an action in the United Kingdom seeking to establish that WPL’s actions infringed copyright in its computer programs.

In that context, the High Court of Justice (Chancery Division), hearing the case, has referred a number of questions to the Court of Justice for a preliminary ruling seeking clarification of the scope of the legal protection conferred by EU law – in particular by Directive 91/250/EEC2 – on computer programs.

In his Opinion delivered today, Advocate General Bot recalls, as a preliminary point, that the protection conferred by Directive 91/250/EEC applies to the expression in any form of a computer program and not to the ideas and principles which underlie any element of a computer program. Thus, the Advocate General takes the view that the protection of a computer program. Here to read more.

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