Home News & Events IP NEWS: Copied Functions of Software Program do not infringe Copyright - Advocate General Bot

IP NEWS: Copied Functions of Software Program do not infringe Copyright - Advocate General Bot

Monday, 06 February 2012 14:14

In what is considered by many lawyers practising in the field of Intellectual Property Rights to be a landmark case, Advocate General Yves Bot has advised the European Court of Justice (ECJ) that computer programs which would have the same possible functions can co-exist without copyright being infringed but creators of the means by which the programs carry out those functions can obtain copyright protection for those methods. Therefore, a computer program is not deemed to infringe the copyright of another computer program just because it performs the same function or functions, but it could be deemed to infringe copyright should it copy the means by which the other program works.

The advice was tendered by Advocate General Bot on 1 December, 2011 relative to the case between SAS Institute Inc., a US giant software company and World Programming Ltd, a relatively small copyright company operating in the United Kingdom, referred by the UK High Court to the European Court of Justice (ECJ) to rule on the interpretation of copyright protection for software in the EU's Computer Programs Directive and the Information Society Directive.

In brief, SAS Institute Inc. claimed that World Programming Ltd had infringed its copyrights by developing a rival software program, using information carried in its software manuals, alleging that World Programming Ltd had written a piece of software which would allow users the execution of the programs written by SAS Institute Inc. without having to pay SAS Institute Inc. for the use of its systems.

World Programming Ltd claimed that its software program was cheaper than that developed by SAS Institute Inc.

Under the Computer Programs Directive copyright protection is given to "the expression in any form of a computer program" but does not apply to "ideas and principles which underlie any element of a computer program, including those which underlie its interfaces". The same Directive also states that "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".

The Information Society Directive sets out rules on reproduction rights. Under this Directive EU Member States are obliged to "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 for authors, of their works".

In his opinion, Advocate General Bot explains that the possible workings of a computer program and the language used to create it, is not in itself copyrightable because they constitute ideas without "concrete expression". Ideas on their own are not copyrightable. "In other words, the functionality of a computer program is the service which the user expects from it. In my view, the functionalities of a computer program cannot, as such, form the object of copyright protection under the Computer Programs Directive." he emphasised, adding further: "To accept that a functionality of a computer program can be protected as such would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.”

Although the Advocate General’s advice is not binding under EU law, it is the norm that the European Court of Justice follows such learned opinion in its decision.