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 The Software directive has since been replaced by Council Directive 2009/24/EC but without relevant alterations in substance in this regard, and therefore the principles expressed here are still valid: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