Monday, 9 May 2016

From Elvish and Klingon to C++: languages should or should not be subject to copyright protection Part 2?

So our story continues. The Software directive has since been replaced by Council Directive 2009/24/EC but without relevant alterations in substance in this regard, and therefore the principles expressed here are still valid:

Article 1: “Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive” and “A computer program shall be protected if it is original in the sense that it is the author’s own intellectual creation. No other criteria shall be applied to determine its eligibility for protection”

The same idea of protecting merely the expression is found also in the TRIPS agreement and the WIPO agreement, which were also both referred to in the case. The CJEU referred to Article 5(3) of the Software Directive, stipulating that a person who has obtained a copy of a computer program under a licence is entitled, without the authorisation of the owner of the copyright, to observe, study or test the functioning of that program so as to determine the ideas and principles which underlie any element of it, provided that those acts did not infringe the copyright in the program. Authorisation for such acts, to the extent that these included loading and running the program, is not required if they are necessary for the use of the program by the lawful acquirer in accordance with its intended purpose, including for error correction. The CJEU expressly confirmed that licensing agreements cannot be used to try to protect the ideas and principles underlying any element of the program: Thus, any agreement terms seeking to prevent the studying, observing and testing of licensed software are unenforceable.

CJEU held that neither the SAS Language nor the functionality of the SAS System were protected by copyright under the Software Directive, and no infringement could take place. However, the Court also found that “the finding (referred to here) cannot affect the possibility that the SAS language and the format of SAS Institute’s data files might be protected, as works, by copyright under Directive 2001/29 if they are their author’s own intellectual creation”. Thus, while the court confirmed that these elements were not protected, it did leave the window open as to that they COULD be protected; This leads to the conclusion that while emulating the functionality of software is allowed, reproducing a copyright work consisting of a programming language or data file format could not be.

To further clarify the matter, quite a clear statement in this regard can be found in another CJEU’s ruling given quite at the same time as the SAS ruling (and in fact, the SAS ruling refers to this as well), namely its ruling in case Bezpecnostni softwarova asociace, where it stated that: “the object of protection under Directive 91/250 includes the forms of expression of a computer program and the preparatory design work capable of leading, respectively, to the reproduction or the subsequent creation of such a program.”

Conclusions to follow in the final part, but in the meanwhile have a pleasant working day!



Friday, 6 May 2016

From Elvish and Klingon to C++: languages should or should not be subject to copyright protection Part 1?

While being involved in interesting licensing arrangements in TMT sector recently, I must admit that this  case truly caught my eye in the latest in Hollywood Reporter:

"When Paramount and CBS closed out 2015 with a lawsuit over a crowdfunded Star Trek fan film titled Axanar, the two studios probably had no idea that they were about to get mired in an esoteric legal debate about the protectability of the Klingon language. But that's exactly what's happened, and with the language of digital coding hanging in the background, a California federal judge's forthcoming decision could hold significance — so large, in fact, that this otherwise run-of-the-mill copyright action has now drawn an amicus brief from a language society that quotes a Klingon proverb translated as "we succeed together in a greater whole."

To review, after the Star Trek rights holders filed their complaint, the defendant production company demanded particulars of the franchise's copyrighted elements. In response, Paramount and CBS listed many, but what drew most attention was claimed entitlement to the Klingon language. The defendant then reached back to a 19th century Supreme Court opinion for the proposition that Klingon is not copyrightable as a useful system."

The conclusion of the brief states the following:

We had an interesting discussion in ITechLaw's London conference on the copyright protection of programming languages and there seems to be an interesting connections between these two cases and therefore I wanted to write about this topic. So main questions, can one infringe a copyright in J.R.R Tolkien’s Elf language by writing a book with that language? Or more interesting is C++ different to Klingon language discussed above?

As a start I think it is needed to cite SAS v. World Programming Ltd (WPL) - case briefly although the case itself is most likely quite known by my learned colleagues (English High Court (Arnold Judge), ruling in July 2010; ECJ case 406/10 (ruling on 2 May 2012), English Court of Appeal (21 November 2013). 

So, the case involved the so called SAS System, a software program enabling its users to perform certain data processing and analysis tasks. As background, the SAS System was and is quite a profitable one, based on roughly 35 years of experience and development.  WPL saw a market for alternative software, which would be able to execute application programs written in the SAS Language. For this purpose WPL had licensed the Learning Edition of the SAS System, which it carefully studied and tested. On the basis of its observations, it developed the so called WPS system that was competing with the SAS System. WPL openly admitted that this was in fact also its purpose, and did not even try to excuse itself in respect of its purposes.  What turned out to be rather crucial to the case was that WPL had developed its system without access to the SAS source code or object code, and furthermore, its system was written in a different programming language. Probably the most important merit of this competing system, and definitely one of the reasons why SAS had such a major interest to dispute the case in different instances, was that it enabled users of the SAS System to change their system significantly more easily than before, as the WPS system was able to read the SAS programming language. This saved the customers from the trouble of rewriting their existing applications in a different language in order to change their systems, and thus significantly reduced to costs (and, naturally, the threshold) of such change. The courts focused most on the evaluation of whether the claimed components of the SAS System were protected by copyright in the first place, and thus SAS’s claims were largely examined in this respect.

Next time we further elaborate this so stay tuned!