Judge backs own judgment in software copyright case

SAS, which develops software for data processing and analysis, had sued WPL in the UK after the latter launched software called World Programming System (WPS) that could execute applications written in the SAS language. It alleged copyright infringement and breach of contract.

In July 2010, Mr Justice Arnold noted that there was some uncertainty over the interpretation of the EU Software Directive and referred nine questions to the CJEU. However, he also gave his provisional findings on the law and facts, which were broadly in favour of WPL.

The Court of Justice of the European Union (CJEU) gave its judgment last year, in which it confirmed that the functionality and programming language of a computer program cannot be protected by copyright (further analysis here).

The case then came back to the UK courts, and the judge was effectively asked to review his original judgment in the light of the CJEU ruling.

Arnold said that the CJEU judgment essentially endorsed the interpretation of the Directive in the UK courts: “In short, copyright in a computer program does not protect either the programming language in which it is written or its interfaces (specifically, its data file formats) or its functionality from being copied.”

And, despite the arguments made by SAS, Arnold upheld all of his original findings: there was no infringement, except to a limited extent in the case of the WPS Manual.

Hamish Sandison, a partner of Field Fisher Waterhouse, welcomed the ruling: "[Arnold] strikes a fair balance between the rights of the first software developer and a newcomer by reaffirming that the first developer may prevent the newcomer from getting a free ride from literal copying of its program manuals, while at the same time making clear that the newcomer is at liberty to copy the functionality of the first program.”

But he added: “It is disappointing perhaps that the English court did not rule on whether a programming language can be protected as a distinct copyright work. But this point was not pleaded in time and it must await another day."

SAS was represented by barristers Michael Hicks and Guy Hollingworth and law firm Bristows. World Programming was represented by barristers Martin Howe QC, Robert Onslow and Isabel Jamal and law firm Speechly Bircham.