High Court asks European Court to answer whether copying software programming language, interfaces and functionality infringes copyright – SAS v WPL, High Court

SAS had developed analytical software called the SAS System over a number of years and was a giant in the market for software that enabled users to carry out analysis of data. One key element was its own programming language. WPL sought to replicate functionality of the SAS System and use the SAS programming language. Although WPL did not copy the actual source code, SAS alleged that the act of copying the functionality and using SAS programming manuals to help it to do so infringed SAS’s copyright. SAS made a number of further copyright allegations.

The High Court ruled that WPL had copied one of SAS’s programming manuals. However, in respect of the other allegations, the Court was of the view that there was no copyright infringement, based on previous English court cases of easyJet v Navitaire and Nova v Mazooma. However, it decided to make a reference to the European Court of Justice for a definitive ruling on the European Union’s position on the extent of copyright protection in software programming language, programming interfaces and the functionality within the software.

Mark Weston, a Partner at Matthew Arnold & Baldwin, comments: ‘There have now been three big cases on the extent to which the functionality within software can be copied if the underlying source code has not been copied. In order to enable players within the software industry to properly compete with each other, it is to be hoped that the European Court of Justice will confirm the English courts’ understanding of the law in this area. A definitive ruling on these issues will take several months. Until then, the current position set out in the English cases remains good law, although there will now follow a period of uncertainty as to what may happen next.’