Copyright update: Hope of copyright clarification for computer programs
Friday July 30th 2010, by Piers Strickland
In a recent decision in the High Court, SAS Institute Inc v World Programming Ltd [2010] EWHC 1829 (Ch), 23 July 2010, The Honourable Mr Justice Arnold made a reference to the European Court of Justice (ECJ) concerning the extent to which certain elements are protectable by copyright as a computer program.
In particular, Arnold J considered that guidance from the ECJ was required as to what extent the following features were protectable by copyright:
- Programming languages.
- Interfaces.
- Functionality.
Arnold J concluded that the resolution of the case depended on a number of important issues surrounding the interpretation of Articles 1(2) and 5(3) of the Software Directive and Article 2(a) of the Information Society Directive, and that he should refer such issues to the ECJ.
COMMENT: Despite making a reference to this ECJ, Arnold J expressed his own view in his judgment: i.e. that it should not be an infringement of the copyright that subsists in a computer program to replicate its functions without copying its source code or design. This view is consistent with the previous decision of Navitaire Inc v Easyjet Airline Company and another [2004] EWHC 1725 (Ch). The outcome of this case should be carefully scrutinised by those software companies who wish to replicate certain aspects of software products already on the market.
