software code and copying

The High Court has rejected all but one of the claimant’s claims in its copyright infringement action against the defendant’s alternative software, following the ECJ ruling on the protection given to non-textual software and other aspects of the Software Directive (91/250/EEC) …show full speedread

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Background

Software Directive

Article 1(2) of the Software Directive (91/250/EEC) (now codified by Directive 2009/24/EC) provides that the expression in any form of a computer program is protected by the Software Directive, but that:

“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.”

Article 5(1) provides that:

“In the absence of specific contractual provisions, the acts referred to in Article 4(a) … shall not require authorisation by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction.”

Article 5(3) provides that:

“The person having a right to use a copy of a computer program shall 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.”

Under Article 9, contractual provisions contrary to the exception (among others) provided for in Article 5(3) are void.

Articles 5 and 9 are reflected in recitals 17 and 18:

Recital 17 provides that the exclusive rights of the author to prevent the unauthorised reproduction of his work have to be subject to a limited exception in the case of a computer program to allow the reproduction technically necessary for the use of that program by the lawful acquirer. This means that the acts of loading and running necessary for the use of a copy of a program which has been lawfully acquired, and the act of correction of its errors, may not be prohibited by contract.

Recital 18 provides that a person having a right to use a computer program should not be prevented from performing acts necessary to observe, study or test the functioning of the program, provided that these acts do not infringe the copyright in the program.

Information Society Directive

Article 2 of Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (Information Society Directive) states that:

“Member states shall provide for 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:

(a) for authors, of their works … “.

Copyright, Designs and Patents Act 1988

The Software Directive was implemented in the UK by the Copyright (Computer Programs) Regulations 1992 (SI 1992/3233) which amended the Copyright, Designs and Patents Act 1988 (CDPA) to provide that computer programs and the preparatory design material for a computer program are protected as separate categories of literary works under the CDPA (sections 3(1)(b) and (c), CDPA).

A copyright owner has the exclusive right to copy his work (section 16(1)(a), CDPA). Copying means reproducing the work in any material form, including the storage of the work in any medium by electronic means (section 17(2), CDPA). Article 1(2) and recitals 13 and 14 of the Software Directive are not reflected in the CDPA. However, it is a basic principle of UK law that copyright seeks to protect the form of expression of ideas, and not the ideas as such.

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Facts

Dispute between the parties

The claimant, SAS Institute Inc, was a developer of analytical software referred to as the SAS System, which was an integrated set of programs enabling users to carry out a wide range of data processing and analysis tasks, particularly statistical analysis. The core component of the software was Base SAS, which enabled users to write and run application programs in a specific language (SAS Language). The functionality of Base SAS could be extended by the use of additional components, three of which were relevant to this case (collectively referred to with Base SAS as the SAS Components).

SAS sold what it described as a Learning Edition product, which was an edition of the software enabling users to learn how to use the SAS System.

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