Most retail computer programmes are licensed for use by one user at a time. A licensed user who purchases software is entitled to utilise it for personal use, allowed to make copies for backup purposes, but not to share copies with friends and colleagues.
This landmark software copyright case is relevant to authors of computer programmes- Josette Grech
The unauthorised copying of software, however, is not translatable only in having a multiplication of copies of the same software free of charge. Software companies try to copy software programmes developed by their competitors, in some instances emulating them, and offer them for sale at reduced prices.
This situation arose some years back when a UK small software company, World Programming Limited (WPL), wrote a piece of software that allowed users of a programme developed by a US software giant company, SAS Institute Inc, to execute SAS programmes without the need to pay SAS for the use of its systems. The software developed by the UK company emulated the SAS system and made it available at a cheaper price than SAS’s.
SAS brought an action for copyright infringement in its computer programmes against WPL in the UK courts, claiming that WPL’s software infringed its copyright, broke the terms of its software licence with WPL itself and that WPL infringed its copyright by copying and reusing sections of its manuals and guides.
In finding in favour of WPL, the UK High Court followed its previous case-law, which established that no infringement is committed if a competitor of the copyright owner studies how the programme functions and then writes its own software to emulate the functionality of that programme.
The High Court determined in a provisional decision that while copyright law protected the source code of software programmes, it did not prevent WPL from writing software that emulated the functionality of SAS’s software. This decision was motivated by the fact that ideas cannot be monopolised to the detriment of technological progress and industrial development.
SAS argued that this was an incorrect interpretation of the EU Computer Programmes Directive and Information Society Directive. The UK High Court, acknowledging that there was sufficient doubt over how provisions set out in these directives should be applied, referred the case to the Court of Justice of the European Union (CJEU) for a preliminary ruling. Such rulings are preceded by a non-binding opinion of the advocate general whose reasoning is, in the majority of cases, followed by the CJEU.
Recently, European Court of Justice Advocate General Yves Bot delivered his opinion which follows on the same lines set already by the UK High Court. He based his view on the well-established truth that the expression of ideas, not ideas on their own, can be the subject of copyright.
To this extent he made a distinction between the functionality of a computer programme, which is the service that the user expects from it, and the way the programme is written to make the programme achieve that functionality. He exemplified this distinction by putting forward a concrete scenario.
A computer programme for airline ticket reservations, for instance, contains a multitude of functionalities needed to make a booking such as finding the flight requested by the user and checking availability. Those functionalities are similar to an idea, thus non-copyrightable. There are, however, many means of achieving the concrete expression of those functionalities, which are on the other hand eligible for copyright protection since they reflect the author’s own intellectual creation.
The Advocate General concluded that insofar as the functionality of a programme is an idea it is not eligible, as such, for copyright protection. But, he pointed out that the means of achieving the concrete expression of those functionalities may be eligible for copyright protection under the directive.
This landmark software copyright case is relevant to authors of computer programmes, and potentially any licensors or users of computer programs in Europe. It substantially limits the ability of software rightsholders to prevent the functionality of their programmes being replicated by their competitors.
jgrech@demarcoassociates.com
Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.