Limited copyright protection for computer programs

The functionality of a computer program and the programming language cannot be protected by copyright, the Court of Justice of the European Union has recently asserted. Indeed, anyone who purchases a licence for a program is entitled to observe, study or test the way it functions in order to determine the ideas and principles which underlie that program and utilise such ideas for his own commercial purposes, the court confirmed.

A company, SAS Institute, developed an integrated set of programs which enables users to carry out data processing and analysis tasks, in particular statistical analysis. The core component of their SAS system enables users to write and execute application programs, commonly known as scripts, written in the SAS programming language for data processing. A competing company, WPL, produced a similar system, WPS, which imitates to a large extent the functionalities of the SAS system. This meant that users of the SAS System could run the scripts which they have developed for use with the SAS System on the WPS system. In order to produce the WPS program, WPL lawfully acquired copies of the Learning Edition of the SAS System, which were supplied under licences limiting the rights of the licensee to non-production purposes. WPL used and studied these programs in order to understand their functionality. However, there was nothing to suggest that it had access to or copied the source code of the SAS components.

SAS Institute filed an action before the UK courts alleging that WPL had copied the SAS System manuals and components, thus breaching its copyright and the terms of the Learning Edition licence. The UK Court proceeded to make a preliminary reference to the Court of Justice of the European Union requesting guidance as to the scope of the legal protection conferred by EU law to computer programs and, in particular, whether that protection extends to programming functionality and language.

The European Court confirmed that EU law extends copyright protection to the expression in any form of an intellectual creation of the author of a computer program. However, ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright. The object of the protection conferred by law is therefore the expression in any form of a computer program, such as the source code and the object code, which permits reproduction in different computer languages.

The court then proceeded to clarify that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions, constitute a form of expression. Hence, they do not enjoy copyright protection. If this were not so, the court maintained, it would be possible for software engineers to monopolise ideas, to the detriment of technological progress and industrial development. It is only the source code or object code relating to the programming language or to the format of data files used in a computer program, that are awarded copyright protection.

The court went on to observe that the purchaser of a software licence has the right to observe, study or test the functioning of that software in order to determine the ideas and principles which underlie any element of the program. Indeed, any provisions in any contract of purchase which seek to impede such a right are null and void. The determination of such ideas and principles must, however, be carried out within the framework of the acts permitted by the licence. Consequently, the owner of the copyright in a computer program may not prevent, by relying on the licensing agreement, the purchaser of that licence from observing, studying or testing the functionality of the program so as to extrapolate the ideas and principles which underlie all the elements of the program. This is only the case if the purchaser carries out acts covered by the licence and the acts of loading and running are necessary for the use of the program.

On a final note, the court concluded that the reproduction, in a computer program or a user manual for that program, of certain elements described in the user manual for another computer program protected by copyright may breach copyright protection of the original manual. This is so, however, if the material reproduced constitutes the expression of the intellectual creation of the author of the first manual. The court observed that, the keywords, syntax, commands and combinations of commands, options, defaults and iterations consist of words, figures or mathematical concepts, considered in isolation, are not, as such, an intellectual creation of the author of a program. It is only through the choice, sequence and combination of such words, figures or mathematical concepts that the author expresses his creativity in an original manner. It is up to the national courts to ascertain, in each particular case, whether the material reproduced does constitute a form of expression of the intellectual creation of the author of a user manual of a computer program protected by copyright.

The Maltese Copyright Act affords protection to computer programs. However, our law also recognises the fact that the rights emanating from copyright protection are not absolute rights and clearly makes provision for limitations to these rights in specified circumstances. Indeed, our law recognises, just as the Court of Justice of the European Union has done, that such limitations also apply specifically to copyright in computer programs. The author of a computer program must therefore be aware that any copyright that he enjoys over a computer program does not provide him with unassailable rights but such rights may in certain specific circumstances be curtailed for the sake of innovation and progress.

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Dr Vella Cardona is a practising lawyer and a freelance consultant in EU, intellectual property, consumer protection and competition law. She is the deputy chairman of the Malta Competition and Consumer Affairs Authority as well as a member of the National Commission for the Promotion of Equality.