SAS Institute Inc (“SAS”) was a developer of analytical software referred to as the SAS System. SAS sold a version of the software which enabled users to learn how to use the SAS System (the “Learning Edition”). SAS took legal action against World Programming Ltd (“WPL”), who had created a software product called World Programming System (“WPS”) to compete with the SAS System, for infringing the copyright in its SAS System.

WPL had designed WPS to emulate much of the functionality of the SAS System by studying the SAS manuals and the Learning Edition, but it was common ground that they did not have access to the source code.

SAS brought four claims, but they were only successful in their claim that WPL had infringed the copyright in the SAS Manuals when creating the WPS Manual.

The alleged infringements

SAS’s four claims were that WPL had:

  1. Copied the manuals for the SAS System when creating WPS and consequently had infringed its copyright in the manuals (the “Manual to Program claim”);
  2. Indirectly infringed copyright in the SAS Components in creating WPS (“Program to Program” claim);
  3. Infringed the copyright in the SAS Manuals by reproducing a substantial part of them in WPL’s own WPS Manual and WPS Guide (the “Manual to Manual claim”); and
  4. Breached the licence to use the SAS Learning Edition (Learning Edition claim).

To help the judge determine how to rule, he asked the European Court of Justice (‘ECJ’) to rule on the interpretation of the EU Software Directive and the Information Society Directive.  Applying the ECJ’s ruling, the judge dismissed all of SAS’s claims, except for the Manual to Manual claim. 

SAS was given permission to appeal on the three claims that had been dismissed but the judgement was confirmed in the Court of Appeal, although for different reasons.

Points to consider from the judgment

Copyright law protects the expression of ideas, not the ideas.

It is a cliché of copyright law that copyright does not protect ideas, but only the expression of ideas. But it is not always easy to draw the line between the two.

What is protected is the expression of the author’s “intellectual creation” (meaning that the author had exercised expressive and creative choices in producing the work). For example, the user manual amounted to the intellectual creation of the author; however the computer program did not. The functionality of a computer program will not amount to a form of expression and so the functionality of software (in the sense of what it does and how it responds to particular inputs) could not be protected by copyright.  It fell on the ideas side of the line.

The court referred to an earlier case in which it was said that “a written work consisting of a specification of the functions of an intended computer program will attract protection as a literary work. But the functions themselves do not.”

The general policy of the Directives need to be considered.

It would be contrary to the policy underlying both the Software Directive and the Information Society Directive, if one could achieve copyright protection for the functionality of a program indirectly via its manual, which simply explains the functionality.  No one doubted that copyright in the manuals subsists. The question was: what does that copyright protect?

Protecting proprietary software

The case does not alter the position that literal copying of object or source code is an infringement of copyright.  Although there was no literal copying in this case, the position would have been different if for example a former employee of SAS had left the company and taken a copy of the code to his new employer and then used a material part of the code in the new company’s application.

For those looking to protect the creative functionality within their apps, other forms of legal andcommercial protections are available including making sure that your licensing agreements contain appropriate terms, use of non-disclosure agreements and branding.


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