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In SAS Institute Inc v World Programming Ltd ( July 2010), SAS Institute Inc (SAS) claimed that World Programming Ltd (WPL) had infringed its copyright in its software (the SAS System), by creating a software program called the World Programming System (WPS) to execute application program written in the SAS language. In developing WPS, WPL sought to emulate much of the functionality of the SAS software, but it was accepted that WPL had not had access to the source code and therefore there was no copying of the SAS System source code. WPL had used manuals produced for the SAS System (which documented its functionality) and observed SAS's "Learning Edition" product, which enabled users to learn how to use the SAS System. Although the court concluded that copyright protection was not limited to the text of the source code of the program, but extended to the design of the program, its "structure, sequence and organisation", it stated that there was a distinction between protecting the design of the program and protecting its functionality. It was perfectly possible to create a computer program which replicated the functionality of an existing program, yet whose design was quite different. The key question was whether the skill and labour of SAS had been copied without authority. Copyright in a computer program protected the skill, judgement and labour in devising the form of expression of the program, that is, its design and source code. While it was accepted that WPS replicated a large part of the functionality of the SAS System, this in itself did not infringe the copyright in the SAS System, and WPL had not reproduced any of the design of the SAS System, let alone the actual source code. It did not matter that in certain respects WPL had reproduced elements which went beyond what was strictly necessary in order to reproduce the functionality of the SAS System since the established principle that functionality was not protected by copyright was not confined to what it was strictly necessary to reproduce. While WPS reproduced elements of the SAS language (in particular SAS keywords), this in itself did not constitute infringement of copyright in the SAS System. While the SAS data file formats were interfaces, and WPS could read and write files in that format, this also did not in itself infringe copyright in the SAS System. The Court also considered that it should reject SAS's claim that WPL had infringed copyright in the SAS manuals by producing or testing the WPS system. The court found that the manuals were detailed descriptions of the functionality of the SAS System and it was not an infringement of the copyright in a manual describing those functions to use the manual as a specification of the functions that are to be replicated and to reproduce the manual in the source code of the new program. Once again, it was a question of the kind of skill, judgment and labour involved. Copyright in a literary work, be it a computer program or a manual, did not protect skill, judgment and labour in creating ideas, procedures, methods of operation or mathematical formulae, so that it was not an infringement to reproduce such things either from a computer program or a manual. However, the court found that WPL had infringed copyright in the SAS manuals insofar as it had substantially reproduced them in the WPL manual and guides since it had not merely copied ideas but had substantially reproduced the language of the SAS manuals. The court however, haas asked for clarification to the European Court of Justice and it will be interesting to hearing the its decision. This article is for general purposes and guidance only and does not constitute legal or professional advice. Copyright 2010 Anassutzi & Co Limited. All rights reserved. Information may be shared or reproduced only if accompanied by the author’s name and bio.
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