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Tuesday, 29 November 2011

Advocate General says forget the functionality, look at the code

Advocate General Bot has this morning issued his opinion in Case C-406/10, SAS Institute Inc. v World Programming Ltd. In brief, he suggests that the Court of Justice (CJEU) should hold that under copyright law it is legitimate to copy a program’s functionality and/or a programming language, provided that in reproducing the functionality, the alleged infringer has not reproduced a substantial part of the elements of the original program which are the expression of the author’s own intellectual creation.

The background to the dispute is that SAS has an integrated suite of programs widely used for data processing and statistical analysis. Customers using this software have to write scripts in the SAS Language and must acquire a licence for all of the necessary components of the SAS system. World Programming Ltd (WPL) saw that there was a market for alternative software to emulate the functionality of the SAS system and to run customers’ programs using their data stored in the SAS format.

So the WPL program provided interoperability with the SAS software and provided the same functionality, but it was not suggested that they had access to or copied the source code. SAS took an action in the High Court of England and Wales alleging that WPL had infringed their copyright. Since much of their complaint was directed to copying of functionality and of the SAS language, rather than to straightforward coping of code, Mr Justice Arnold sought a preliminary ruling from the CJEU on the interpretation of the Computer Program Directive (Directives 91/250/EEC, and 2009/24/EC) and the Information Society Directive (Directive 2001/29/EC).

The questions referred, in synopsis
Mr Justice Arnold’s questions were set out in full by the IPKat here. There were nine questions, many of which were multi-part (giving 26 questions in total for the CJEU to decide). The A-G has summarised the questions in the following terms:


2.         In particular, the High Court […] asks, in substance, whether the functionalities of a computer program and the programming language are protected by copyright under Article 1(2) of Directive 91/250. That provision stipulates that such protection is to apply to the expression in any form of a computer program and points out that ideas and principles which underlie any element of a computer program are not protected under that directive.

3.         The Court is also asked to give a ruling on whether Articles1(2) and 6 of Directive 91/250 are to be interpreted as meaning that it is not regarded as an act subject to authorisation for a licensee to reproduce a code or to translate the form of the code of a data file format so as to be able to write, in his own computer program, a source code which reads and writes that file format.

4.            Moreover, the referring court asks the Court to define the scope of the exception to the author’s exclusive copyright in a computer program, provided for in Article 5(3) of Directive 91/250, which states that a person having a right to use a copy of a computer program is to 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.

5.         Finally, the Court is invited to consider the scope of the protection provided for in Article 2(a) of Directive 2001/29, which grants authors 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, of their works. More specifically, the question is whether the reproduction, in a computer program or a user manual, of certain elements described in the user manual for another computer program constitutes, under that provision, an infringement of the copyright in the latter manual.


A-G Bot's Opinion, also in synopsis
The Press Release summarises, with a liberal sprinkling of bold type, how the A-G tackled these questions as follows:


In his Opinion delivered today, Advocate General Bot recalls, as a preliminary point, that the protection conferred by Directive 91/250/EEC applies to the expression in any form of a computer program and not to the ideas and principles which underlie any element of a computer program. Thus, the Advocate General takes the view that the protection of a computer program covers the literal elements of that program, that is to say, the source code and the object code, and also any other element expressing the creativity of its author. [A footnote indicates that this includes preparatory design documents such as flowcharts.]

In the first place, with regard to the functionality of a computer program, the Advocate General defines it as the set of possibilities offered by a computer system – in other words, the service which the user expects from it.

Starting from that premiss [sic], the Advocate General considers that the functionalities of a computer program are not eligible, as such, for copyright protection. The functionalities of a computer program are in fact dictated by a specific and limited purpose. In this, they are similar to ideas. That is why there may be a number of computer programs offering the same functionalities. Thus, if it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

By contrast, the means for achieving the concrete expression of the functionalities of a program may be protected by copyright. Creativity, skill and inventiveness are expressed in the way in which the program is drawn up, in its writing. Thus, the way in which formulae and algorithms are arranged [but not the formulae and algorithms themselves, the IPKat notes, which the A-G likened to the words used by an author] – like the style in which the computer program is written – will be likely to reflect the author’s own intellectual creation and therefore be eligible for protection

The Advocate General therefore takes the view that, as is the case with other works that may be protected by copyright, the fact of reproducing a substantial part of the expression of the functionalities of a computer program may constitute an infringement of copyright. In the present case, he concludes that the national court will have to consider whether, in reproducing the functionalities of the SAS System in its computer program, WPL reproduced a substantial part of the elements of the SAS System which are the expression of SAS Institute’s own intellectual creation.

Turning finally to the Advocate-General's Opinion, this concludes that the Court’s answer to Mr Justice Arnold’s questions should be in the following form:


(1)     Article 1(2) of Council Directive 91/250/EEC … is to be interpreted as meaning that the functionalities of a computer program and the programming language are not eligible, as such, for copyright protection. It will be for the national court to examine whether, in reproducing these functionalities in its computer program, the author of the program has reproduced a substantial part of the elements of the first program which are the expression of the author’s own intellectual creation.


(2)     Articles 1(2) and 6 of Directive 91/250 are to be interpreted as meaning that it is not regarded as an act subject to authorisation for a licensee to reproduce a code or to translate the form of the code of a data file format so as to be able to write, in his own computer program, a source code which reads and writes that file format, provided that that act is absolutely indispensable for the purposes of obtaining the information necessary to achieve interoperability between the elements of different programs. That act must not have the effect of enabling the licensee to recopy the code of the computer program in his own program, a question which will be for the national court to determine.


(3)     Article 5(3) of Directive 91/250, read in conjunction with Articles 4(a) and (b) and 5(1) thereof, is to be interpreted as meaning that the expression ‘any of the acts of loading, displaying, running, transmitting or storing the computer program [which the person having the right] is entitled to do’ relates to the acts for which that person has obtained authorisation from the rightholder and to the acts of loading and running necessary in order to use the computer program in accordance with its intended purpose. Acts of observing, studying or testing the functioning of a computer program which are performed in accordance with that provision must not have the effect of enabling the person having a right to use a copy of the program to access information which is protected by copyright, such as the source code or the object code.


(4)     Article 2(a) of Directive 2001/29/EC … is to be interpreted as meaning that the reproduction, in a computer program or a user manual, of certain elements described in the manual for another computer program may constitute an infringement of the copyright in the latter manual if – a question which will be for the national court to determine – the elements reproduced in this way are the expression of their author’s own intellectual creation.


On first reading, the IPKat thinks the A-G has done a pretty good job of providing answers to a complex set of questions. It remains to be seen whether these answers (if followed by the Court of Justice) will provide sufficient detail for the dispute to be resolved in the High Court.


11 comments:

Anonymous said...

Unless I am mistaken, the - in my view deplorable - idea of copyright protection for the technical medium software arose because sequences of instructions as written down were considered literary works, nothing more, nothing less. And if I correctly recall my lessons on copyright of many years ago, what is protected in the case of literary works is the manner in which ideas are expressed, not the ideas themselves. Why then should it be any different in the case of the literary genre "software". Yes, the A-G got it right.

Gibus said...

Also worthly to note:

"57. 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."

And since the AG does not mention the way to protect, we can therefore conclude that sofwtare functionnalities shall not be pretected by anything (including copyright nor patents).

Now it is clear why patent microcosm (see https://www.unitary-patent.eu/content/inside-view-patent-microcosm) insist that CJEU does not pick its nose into patent litigations.

Anonymous said...

Gibus, a functionality of a machine or of a process aren't patentable either. How this functionality is achieved may however be patentable.

Likewise, for a computer program or a computer-implemented process, the result to be achieved by this software should not in any case be patentable. However, how this functionality, if technical, is achieved, should be patentable and it seems indeed only fair that, when there is an invention, it can be protected in broader terms than those of the literal code. Mind you, not in such broad terms that it results in protecting the result to be achieved, just as you can't claim protection to any cancer drug, just because you have invented a specific formulation.

As a previous AnonyMouse has pointed out, the very concept of copyright protection for computer programs is more questionable, as copyright was intended for artistic and literary works.

Anonymous said...

In the early days of computing, the justification for computer programs falling under the "literary work" heading was easier to appreciate: before VDU terminals became available, programs were written in alphanumeric characters on paper before being coded into machine -readable form such as paper tape or punched cards. The fundamental original version of the program was therefore clearly seen to be alphanumeric characters printed on paper, just like any other literary work.

I recall writing programs in "ALGOL" using coding sheets consisting of lines of 80-character boxes to match the 80 column punched cards that I would have to punch to run the program. The stack of punched cards was the program, and bore both printed representations of the alphanumeric chaacrters as well as the machine-readable punched characters. In the days before cover disks, magazines used to print listings of programs that users could type in themselves. Nowadays few computer users actually write programs themselves, and the underlying structure of a program is invisible to anyone other than an expert having the neccessary tools.

Gibus said...

Anonymous, I'm just tired of this patent legalese blurb. Once for all, there is no technical vs non-technical software, no software "as such" vs software not-as such.

Software is a mathematical description of a functionality. People in the patent microcosm do not understand this or do not want to understand.

Hopefully, ordinary people and among them judges and advocates in CJEU do understand.

So if you wanna tell to somebody your sophistry about "technical" software, please ask for European substantive patent law to be included in EU law (for eg. via the unitary patent, which is anyway unavoidable), and refer the question to CJEU.

Anonymous said...

Software is a mathematical description of a functionality.

No. First of all, software isn't just a description. Software is a set of instructions suitable to be carried out by a computer. A formula on a textbook is a "mathematical description", but it isn't software.

Secondly, software doesn't just describe a "functionality". It actually sets out how this functionality is to be achieved by the computer.

You can't patent a result to be achieved. I can't patent "a cancer cure", "a more efficient engine", or "a process for cleaning exhaust fumes", even if I've actually invented one. I can however patent "a cancer drug with components A, B and C", "an engine with components D, E and F, arranged so-and-so for higher efficiency" or "a process for cleaning exhaust fumes, comprising steps G, H and I".

My whole point is that if, by "functionality", we understand the result to be achieved by an invention, well, that can't be patented anyway, regardless of the sort of invention we may be talking about, so that the AG's point is pretty much irrelevant to the discussion of the patentability of software.

I personally get tired of people in the FOSS microcosm dismissing as "patent legalese blurb" any good faith attempt by people who actually understand the patent system to explain how it works. The requirement of a "technical effect" is actually a restriction of what may be considered a patentable invention. And please note that the AG himself used the dreaded "as such" in the sentence that you quote yourself...

Gibus said...

Hey dear anonymous, it seems you haven't got the point: our views are irreconcilable. You think you are arguing in good faith from your understanding of patent law. But I'm in no less good faith from my knowledge on computer science. I could argue that software is a self-describing entity but that would lead to a deeper endless disagreement So what I'm proposing, in relation with the post we are commenting, is just: OK we disagree, why not ask to CJEU to decide between our point of view?

Would you agree? And if you would, would you therefore agree to allow referrals on substantive patent law to CJEU?

Anonymous said...

Dear Gibus,

I actually agree that patent law should never exist in isolation. The objections that others make to the CJEU's involvement appear to be twofold: Firstly, people are afraid that it can make patent litigation even more expensive and lengthy that it already is. Secondly, if you have a look at the IPKat's archives, you'll see that the CJEU's record in trademark matters, not to mention copyright, is, to say the least, somewhat controversial.

Personally, I'm quite agnostic regarding referrals of substantive patent law to the CJEU. As a matter of fact, the CJEU has already ruled in matters of substantive patent law, notably, most recently, in Brüstle vs. Greenpeace...

Anonymous said...

@Anonymous "ALGOL": where I came from, ALGOL used punched tape, never punched cards, which were used for FORTRAN. Anyway, it meant ALGOrithmic Language, and that is how computer programmes were understood: algorithms, i.e. ways to do things. Not mere description. We call ways to do things "methods", and such are patentable, provided all the usual requirements are fulfilled. The product obtained is also protectable by the patent, unless it can be proven that it was obtained by another method. What is so difficult to reconcile?

Kind regards,

George Brock-Nannestad

Anonymous said...

Re George, my university was certainly using 80 column cards for ALGOL in 1968: I still have some old ones that bear the legend ALGOL PROGRAM CARD [scrap cards were ideal raw material for making dart flights!]. I never used FORTRAN but later used 9 hole paper tape for BASIC programming.

Anonymous said...

The colorful SAS/Graph manual inspired me to reproduce some of that system's functionality, namely the interpolation of irregularly spaced data for the production of contour plots. (Cranking out JCL for executing SAS under MVS wasn't an universal skill, the SAS syntax and dataset format were not excessively intuitive, and, IIRC, not everyone at the university had the permission to run SAS).

I guess I must have been infringing someone's IP rights, although I mostly looked up and implemented the references provided in the SAS book, including a paper from Japan - so the folks in Cary NC did owe something to others too.

I hope I've kept this manual somewhere, it was really beautiful. It had the slenderness of a finger, where the other SAS books were about as thick as your fist. But it, too, started putting on weight with the passing of years.

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