Advocate General Bot has recently delivered his opinion in the long running battle between SAS Institute Inc (“SAS”) and World Programming Limited (“WPL”) reaching a number of important conclusions concerning the interaction between computer programs and copyright law.

The role of the Advocate General is to examine the case and to give an opinion to the Court of Justice of the European Union (“CJEU”). The CJEU is free to depart from AG Bot’s conclusions, however such opinions are usually influential on the court.

SAS created a program called SAS System which essentially allowed users to carry out analysis and processing of data. Three additional SAS components were at the centre of this dispute as users were required to take out a licence to use these components in order to be able to run or create applications in the special SAS computer language.

WPL began developing an alternative piece of software which would emulate the functionality of the SAS software and also allow SAS users to run their programs using the data stored in the SAS format. WPL created this program without copying the SAS software source code, as commonly occurs in software copyright infringements claims. AG Bot was of the view that the protection of a computer program covers the source code, object code and any other element expressing the creativity of the author. The functionality of a computer program cannot be covered by copyright as this would, in effect, be akin to monopolising ideas. In order to succeed in a case such as this SAS would have to show that WPL, in replicating the functionality of the SAS software, reproduced a substantial part of the expression of their intellectual property (for example the way in which the algorithms etc are arranged in the software).

The principle that copyright protects the expression of an idea and not the idea itself is well accepted in this area of law, however computer software development is one of the most difficult areas to determine precisely where the line falls between the idea and the expression of the idea. It remains to be seen whether the CJEU will follow this reasoning however the final decision will no doubt be eagerly awaited by software companies.

Contributed by Leo Moore and John Farrell.