Euro beaks mull copyright of software features

Can what a program does be protected?


The European Court of Justice (ECJ) should apply copyright protection to the functions of computer programs, a software company has told it, according to media reports.

SAS Institute Inc claims that World Programming Ltd infringed its copyrights by developing a rival software program it designed using information published in manuals for SAS software. It wants the ECJ to apply copyright protections to the functions of computer programs.

"[Exempting computer program functions from copyright protection would] deprive the copyright owner of a significant part of the value of the protection given to computer programs," SAS's lawyer said, according to a report by news agency Bloomberg.

"There is no warrant for excluding that type of intellectual creativity," he said.

"So detailed are the SAS manuals in describing the contents of the SAS System that they were effectively used by [World Programming] as the preparatory design material which enabled [it] to create its competing software,” he said.

World Programming claimed that applying copyright protection to the functions of computer programs would adversely affect competition and innovation in the industry, according to Bloomberg.

"The extension of copyright to cover such a situation would have greatly detrimental effects on competition, and would prevent the development of new and better ways of achieving those functions," the lawyer for World Programming told the ECJ, according to the Bloomberg report.

"[World Programming] did not have access and did not copy either any of the text of the source code of the SAS program, or importantly, any of its structural design,” he said.

The ECJ is hearing the case after a UK High Court judge referred questions to it about how EU law should be interpreted. The judge provisionally ruled in favour of World Programming but acknowledged that there was sufficient doubt over how laws set out in the EU's Software Directive and Information Society Directive should be applied to merit a referral to the ECJ.

Under the Software Directive copyright protection is given to "the expression in any form of a computer program" but does not apply to "ideas and principles which underlie any element of a computer program, including those which underlie its interfaces".

The Directive also states that "the person having a right to use a copy of a computer program shall 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".

The Information Society Directive sets out rules on reproduction rights. Under the Directive EU member states "shall provide for 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 for authors, of their works".

Kim Walker, a copyright law expert at Pinsent Masons, the law firm behind Out-Law.com, said that he does not expect the ECJ to extend copyright protection to the functions of computer programs. However, Walker said that it may be possible for the ECJ to offer the High Court guidance on whether, in this case, SAS' manuals were sufficiently detailed that using them as a guide to how to code a similar product was an infringement of copyright.

"If the manuals are, as SAS apparently claim, so detailed that they contain an expression of the way SAS's software product is put together and, in this case, give the World Programming designers sufficient insight into how SAS' software has been designed, I can see the ECJ allowing the High Court to find in favour of SAS on the particular facts," Walker said.

"I do not think it will go as far as to offer protection to the functions of computer programs," he said.

In its ruling the High Court said that while copyright law protected the source code of software programs, it did not prevent one company writing software that copied the way another program worked.

Mr Justice Arnold had considered a case involving budget airline easyJet and developer Navitaire when coming to his provisional ruling. In that case the judge ruled that the EU's Software Directive meant that copyright in computer programs did not protect programming languages, interfaces or functionality.

In the easyJet judgment in 2004 Mr Justice Pumfrey ruled that the EU's Software Directive meant that copyright in computer programs did not protect programming languages, interfaces or functionality. SAS argued that this was an incorrect interpretation of the Directive. Mr Justice Arnold did not agree but said that there was enough doubt, as expressed by Mr Justice Pumfrey in 2004, that the ECJ should be asked to clarify the law.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

Similar topics


Other stories you might like

  • While the iPhone's repairability is in the toilet, at least the Apple Watch 7 is as fixable as the previous model

    Component swaps still a thing – for now

    Apple's seventh-gen Watch has managed to maintain its iFixit repairability rating on a par with the last model – unlike its smartphone sibling.

    The iFixit team found the slightly larger display of the latest Apple Watch a boon for removal via heat and a suction handle. Where the previous generation required a pair of flex folds in its display, the new version turned out to be simpler, with just the one flex.

    Things are also slightly different within the watch itself. Apple's diagnostic port has gone and the battery is larger. That equates to a slight increase in power (1.094Wh from 1.024Wh between 40mm S6 and 41mm S7) which, when paired with the slightly hungrier display, means battery life is pretty much unchanged.

    Continue reading
  • Better late than never: Microsoft rolls out a public preview of E2EE in Teams calls

    Only for one-to-one voice and video, mind

    Microsoft has finally kicked off the rollout of end-to-end-encryption (E2EE) in its Teams collaboration platform with a public preview of E2EE for one-to-one calls.

    It has been a while coming. The company made the promise of E2EE for some one-to-one Teams calls at its virtual Ignite shindig in March this year (https://www.theregister.com/2021/03/03/microsoft_ups_security/) and as 2021 nears its end appears to have delivered, in preview form at least.

    The company's rival in the conference calling space, Zoom, added E2EE for all a year ago, making Microsoft rather late to the privacy party. COO at Matrix-based communications and collaboration app Element, Amandine Le Pape, told The Register that the preview, although welcome, was "long overdue."

    Continue reading
  • Recycled Cobalt Strike key pairs show many crooks are using same cloned installation

    Researcher spots RSA tell-tale lurking in plain sight on VirusTotal

    Around 1,500 Cobalt Strike beacons uploaded to VirusTotal were reusing the same RSA keys from a cracked version of the software, according to a security researcher who pored through the malware repository.

    The discovery could make blue teams' lives easier by giving them a clue about whether or not Cobalt Strike traffic across their networks is a real threat or an action by an authorised red team carrying out a penetration test.

    Didier Stevens, the researcher with Belgian infosec firm NVISO who discovered that private Cobalt Strike keys are being widely reused by criminals, told The Register: "While fingerprinting Cobalt Strike servers on the internet, we noticed that some public keys appeared often. The fact that there is a reuse of public keys means that there is a reuse of private keys too: a public key and a private key are linked to each other."

    Continue reading

Biting the hand that feeds IT © 1998–2021