6 May 2011 by Vincent Billings

Software functionality – can it be protected?

Copyright in computer programs protects the skill and labour of the programmer/designer only in so far as their work is a written work e.g. source or object code. Protecting the functionality of a computer program is more problematic, as highlighted in the High Court’s recent decision in SAS Institute Inc. (“SAS”) v World Programming Ltd (“WPL”).

SAS develops software that allows its customers to create and run advanced statistical calculations in order to analyse data. WPL developed software that would provide the same functionality as the SAS software – it recognised the same syntax and commands as the SAS software and was so similar that, for example, where the SAS software produced error messages, the WPL software replicated these. It was clear that WPL had developed its software to provide users with a direct substitute for the SAS software, and WPL accepted that it had sought to replicate the functionality of the SAS software.

At court, SAS had to try to overcome the judgment in Navitaire Inc v Easyjet Airline Company (1) and Bulletproof Technologies Inc (2), which held that copying the functionality of a computer program, without copying the programming language in which it was written (e.g. the source or object code), would not constitute an infringement of the copyright in that computer program.

SAS argued that the Navitaire case had been decided incorrectly, referencing the imprecise wording of the Software Directive (91/250/EEC), and it also sought to distinguish its case from Navitaire on the basis that WPL had (i) copied more than was necessary to reproduce the functionality of the SAS software and (ii) infringed SAS’s copyright by copying language and commands recognised by the SAS software, and also by copying statistical formulae from the SAS user manual straight into the WPL code.

However, whilst acknowledging that the Software Directive is imprecise in certain areas, the High Court held that WPL had not infringed SAS’s copyright and that the ruling in Navitaire was a correct interpretation of the Software Directive, as copyright in computer programs did not protect (i) programming languages from being copied (ii) program interfaces from being copied where that could be achieved without decompiling the code and (iii) the basic functionality of a computer program from being copied.

The case provides a stark warning for software developers on the difficulties they face in protecting the functionality of computer programs. In essence, the Court’s decision demonstrates that the link between the functionality of a computer program and the code in which it is written can be broken – this is because the same functionality in a computer program can be replicated using completely different and distinct programming code.

It is a policy decision for the courts in determining the extent to which the skill and labour involved in creating and developing software can and should be protected by copyright. The fact that the Software Directive is also imprecise only adds to the challenges that software developers will face in seeking to protect the functionality of their computer programs, and also complicates the policy decisions that will be have to be made by the courts. Moreover, such decisions are not unique to copyright law, as the exclusion of functionality from protection has also been considered in the context of other types of intellectual property – for example, trademarks and design rights. So, watch this space.

For advice on the legal aspects of software design and development, please call us on 0207 288 4700 or email us at info@boltburdon.co.uk

5 May 2011 by Louise Dawson

Stamp Duty on Fixtures and Fittings

An explanation of what fixtures and fittings are subject to stamp duty land tax.

5 May 2011 by Lynne Burdon

Our Client Survey

Our end of March client survey is now completed and I am pleased that we have a small improvement in the number of responses where we have exceeded expectations.

Signup To Our Weekly e-News

"*" indicates required fields

We’ll never share your details with any third party in line with our privacy policy.