“such similarities shall be taken to be a representative sample of the similarities present between the SAS Manuals and the WPL Manual as a whole.”
“such specific similarities shall be taken to be a representative sample of the similarities present between the SAS Manuals and the SAS Software Components and WPS as a whole.”
“The case shall proceed on the basis that insofar as [WPL] has used SAS Manuals for the purposes of developing WPS, it shall be treated as having worked from versions of the manuals in respect of which copyright has been admitted to subsist.”
“… the decision as to which percentile definitions to include in PROC UNIVARIATE, and which to leave out, required skill, judgement and labour on the part of SAS Institute's employees, albeit that most of the definitions appear to have come from sources in the public domain. I also accept that this is representative of the substantial skill, judgement and labour expended by SAS Institute in developing the SAS System apart from the skill, judgement and labour in designing and writing the source code. As in this case, to a large extent the SAS System performs statistical computations in accordance with methods devised by others and published in the statistical literature, but in some case the methods have been devised (or at least modified) by SAS Institute's employees. As in this case, SAS Institute has to make a choice as which methods or combinations of methods to offer the users of the SAS System.”
“[60] The SAS Manuals do not contain information about the internal behaviour of the SAS System. Thus they do not give any information about the internal file formats used by the SAS System, the intermediate language used to compile DATA Steps, the SAS object code which the SAS System uses when executing SAS application programs, or the statement structures which result from parsing the PROC steps. Still less do the SAS Manuals contain any details of the source code of the SAS System.” “[250] The SAS Manuals are nothing more (and nothing less) than a very detailed description of what the software does. They give the reader very little insight into how the source code achieves that. As noted above, Professor Ivey [SAS Institute’s Expert] did not compare WPS to the SAS source code. When asked, he said that he would expect the two source codes to look different. Dr Worden [WPL’s expert], who had compared certain aspects of the WPS code with the corresponding SAS code, said that they were indeed very different.”
“Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”
“[13] Whereas, for the avoidance of doubt, it has to be made clear that only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright under this Directive; [14] Whereas, in accordance with this principle of copyright, to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected under this Directive; [15] Whereas, in accordance with the legislation and jurisprudence of the Member States and the international copyright conventions, the expression of those ideas and principles is to be protected by copyright;”
“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.”
“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.”
“(20) This Directive is based on principles and rules already laid down in the Directives currently in force in this area, in particular Directives 91/250/EEC [i.e. the Software Directive], 92/100/EEC, 93/83/EEC, 93/98/EEC and 96/9/EC, and it develops those principles and rules and places them in the context of the information society. The provisions of this Directive should be without prejudice to the provisions of those Directives, unless otherwise provided in this Directive.”
“Such a harmonised legal protection does not affect the specific provisions on protection provided for by Directive 91/250/EEC. In particular, it should not apply to the protection of technological measures used in connection with computer programs, which is exclusively addressed in that Directive. It should neither inhibit nor prevent the development or use of any means of circumventing a technological measure that is necessary to enable acts to be undertaken in accordance with the terms of Article 5(3) or Article 6 of Directive 91/250/EEC. Articles 5 and 6 of that Directive exclusively determine exceptions to the exclusive rights applicable to computer programs.”
“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: (a) for authors, of their works …”
“33 Article 2(a) of Directive 2001/29 provides that authors have the exclusive right to authorise or prohibit reproduction, in whole or in part, of their works. It follows that protection of the author’s right to authorise or prohibit reproduction is intended to cover ‘work’. 34 It is, moreover, apparent from the general scheme of the Berne Convention, in particular Article 2(5) and (8), that the protection of certain subject-matters as artistic or literary works presupposes that they are intellectual creations. 35 Similarly, under Articles 1(3) of Directive 91/250, 3(1) of Directive 96/9 and 6 of Directive 2006/116, works such as computer programs, databases or photographs are protected by copyright only if they are original in the sense that they are their author’s own intellectual creation. 36 In establishing a harmonised legal framework for copyright, Directive 2001/29 is based on the same principle, as evidenced by recitals 4, 9 to 11 and 20 in the preamble thereto. 37 In those circumstances, copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation.”
“75 The difficulty as regards determination of the originality of the graphic user interface lies in the fact that the majority of the elements which comprise it have a functional purpose, since they are intended to facilitate the use of the computer program. Accordingly, the manner in which those elements are expressed can be only limited since, as the Commission stated in its written submissions, the expression is dictated by the technical function which those elements fulfil. Such is the case, for example, of the mouse which moves the cursor across the screen, pointing at the command button in order to make it operate or of the drop-down menu which appears when a text file is open. 76 In such cases, it seems to me that the criterion of originality is not met, since the different methods of implementing an idea are so limited that the idea and the expression become indissociable. If such a possibility was offered, it would have the consequence of conferring a monopoly on certain companies on the computer program market, thus significantly hampering creation and innovation on that market, which would run contrary to the objective of Directive 2001/29.”
“48. When making that assessment [i.e. the assessment whether the GUI is the author’s own intellectual creation], the national court must take account, inter alia, of the specific arrangement or configuration of all the components which form part of the graphic user interface in order to determine which meet the criterion of originality. In that regard, that criterion cannot be met by components of the graphic user interface which are differentiated only by their technical function. 49 As the Advocate General states in points 75 and 76 of his Opinion, where the expression of those components is dictated by their technical function, the criterion of originality is not met, since the different methods of implementing an idea are so limited that the idea and the expression become indissociable. 50 In such a situation, the components of a graphic user interface do not permit the author to express his creativity in an original manner and achieve a result which is an intellectual creation of that author.”
“That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices.”
“37 Secondly, as is apparent from recital 16 of Directive 96/9 , the notion of the author’s own intellectual creation refers to the criterion of originality (see, to that effect, Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2009] E.C.R. I-6569; [2010] F.S.R. 20 at [35], [37] and [38]; Bezpečnostní softwarová asociace - Svaz softwarové ochrany v Ministerstvo Kultury (C-393/09) [2010] E.C.R. I-13971; [2011] F.S.R. 18 at [45]; Football Association Premier League Ltd v QC Leisure (C-403/08 & C-429/08) [2012] F.S.R. 1 at [97]; and Painer v Standard Verlags GmbH (C-145/10) [2012] E.C.D.R. 6 at [87]). 38 As regards the setting up of a database, that criterion of originality is satisfied when, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices (see, by analogy, Infopaq International [2010] F.S.R. 20 at [45]; Bezpečnostní softwarová asociace [2011] F.S.R. 18 at [50]; and Painer [2012] E.C.D.R. 6 at [89]) and thus stamps his “personal touch” (Painer [2012] E.C.D.R. 6 at [92]). 39 By contrast, that criterion is not satisfied when the setting up of the database is dictated by technical considerations, rules or constraints which leave no room for creative freedom (see, by analogy, Bezpečnostní softwarová asociace [2011] F.S.R. 18 at [48] and [49], and Football Association [2012] F.S.R. 1 at [98]).”
“36 It is common knowledge that, within the European Union, various standards apply as regards the level of originality generally required for copyright protection to be granted. In particular, in some EU countries which have common law traditions, the decisive criterion is traditionally the application of “labour, skills or effort”
“The functionality of a computer program can be defined as the set of possibilities offered by a computer system, the actions specific to that program. In other words, the functionality of a computer program is the service which the user expects from it.”
“In this, therefore, they are similar to an idea. It is therefore legitimate for computer programs to exist which offer the same functionalities.”
“There are, however, many means of achieving the concrete expression of those functionalities and it is those means which will be eligible for copyright protection under [the Software Directive]. As we have seen, creativity, skill and inventiveness manifest themselves in the way in which the program is drawn up, in its writing. The programmer uses formulae, algorithms which, as such, are excluded from copyright protection because they are the equivalent of the words by which the poet or the novelist creates his work of literature. However, the way in which all of these elements are arranged, like the style in which the computer program is written, will be likely to reflect the author's own intellectual creation and therefore be eligible for protection.”
“Whatever its nature and scope may be, it is my view that the functionality, or indeed the combination of several functionalities, continues to be comparable to an idea and cannot therefore be protected, as such, by copyright.”
“64 Similarly, it is my opinion that the foregoing analysis cannot be called in question by the nature and extent of the skill, judgment and labour expended in devising the functionality of a computer program.”
“On the basis of those considerations, it must be stated that, with regard to the elements of a computer program which are the subject of Questions 1 to 5, neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program for the purposes of Art. 1(2) of [the Software Directive].”
“… to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolises ideas, to the detriment of technological progress and industrial development.”
“The Court also points out that the finding made in para. 39 of the present judgment 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 [the Information Society Directive] if they are their author's own intellectual creation.”
“In this case, the referring court states that WPL has, in particular, taken the keywords, syntax, commands and combinations of commands, options, defaults and iterations from the SAS Manuals in order to reproduce them in its program, as well as in the WPL manual.”
“In my opinion, these elements, as such, do not qualify for the protection conferred by copyright.”
“The WPL System does not reproduce the description [in the SAS Manuals] of those statistical operations but simply executes them.”
“In my view, it follows from the foregoing considerations that those various components correspond to ideas, procedures, methods of operation or mathematical concepts. Consequently, they are not, as such, eligible for the copyright protection conferred by Art. 2 (a) of Directive 2001/29 [i.e. the Information Society Directive].”
“66. In the present case, the keywords, syntax, commands and combinations of commands, options, defaults and iterations consist of words, figures or mathematical concepts which, considered in isolation, are not, as such, an intellectual creation of the author of the computer program. 67. It is only through the choice, sequence and combination of those words, figures or mathematical concepts that the author may express his creativity in an original manner and achieve a result, namely the user manual for the computer program, which is an intellectual creation… 68. It is for the national court to ascertain whether the reproduction of those elements constitutes the reproduction of the expression of the intellectual creation of the author of the user manual for the computer program at issue in the main proceedings.”
“[255] Assuming that the reasoning which led Pumfrey J in Navitaire to conclude that it is not an infringement of the copyright in a computer program to replicate its functions without copying its source code or design is correct, I consider that by parity of reasoning it is not an infringement of the copyright in a manual describing those functions to use the manual as a specification of the functions that are to be replicated and, to that extent, to reproduce the manual in the source code of the new program. Once again, it is a question of the kind of skill, judgement and labour involved. Copyright in a literary work, be it a computer program or a manual, does not protect skill, judgment and labour in creating ideas, procedures, methods of operation or mathematical formulae. It follows that it is not an infringement to reproduce such things either from a computer program or a manual…. [259] … counsel for SAS Institute submitted that WPL had reproduced the form of expression of the mathematical formulae set out in the SAS Manuals in the WPS source code. In principle, this argument seems to me to address the issue from the correct perspective. As I have said, however, the evidence does not establish that SAS Institute's employees expended any particular skill, judgement or labour in devising the form of expression of those formulae as distinct from other mathematically equivalent formulae. Furthermore, it is not possible to translate such formulae directly into source code and WPL has not done so. As I have said, there is some resemblance of form between the WPS source code and the formulae in the SAS Manuals, but it should not be overstated. Having regard to the quality as well as the quantity of what has been taken, and provided that it was permissible for WPL to reproduce the ideas etc. described in the SAS Manuals, I am not persuaded that WPL has reproduced a substantial part of the expression of the SAS Manuals. [260] … counsel for SAS Institute did not dispute that a single mathematical formula was unprotectable by copyright. He submitted, however, that the SAS Manuals contained a compilation of statistical methods and that WPL had reproduced that compilation. Thus in the case of example 14, he argued there were at least 10 possible methods of calculating percentiles in the statistics literature, SAS had exercised skill, judgement and labour in selecting five of those 10 while omitting the remainder and WPL had reproduced that selection in WPS. In my judgment, however, this argument involves an intellectual sleight of hand. If there is a compilation of statistical methods, the compilation is to be found in the SAS System. The authors of the SAS Manuals did not create that compilation, they simply reproduced it. Although the authors of the SAS Manuals undoubtedly exercised skill, judgement and labour in devising the form of expression of the Manuals, and in particular their wording, they did not exercise any skill, judgement or labour in making the compilation of statistical methods. It follows that, to use the language of Infopaq, what WPL reproduced from the SAS Manuals in this respect does not “express the intellectual creation” of the authors of the SAS Manuals. [261] I would add that I do not accept that the SAS System does contain a compilation of statistical methods. It is clear from the evidence that the collection of statistical methods contained in the current version of the SAS System has grown steadily over a period of around 35 years. The collection has grown by accretion as a result of both customer feedback and competitive pressure as well as SAS Institute's own initiatives. While there may be individual procedures or functions in respect of which it could be said that an author or group of authors consciously planned and implemented a particular selection of methods, in general the collection was not planned and there was no overall design. It was therefore not the intellectual creation of an author or group of authors. In this respect it stands in the same position as the collection of commands in Navitaire: see the judgment of Pumfrey J at [92].”
“In so far as counsel for SAS Institute argued that WPL had reproduced compilations of (i) formulae, (ii) keywords, (iii) default values, (iv) comments and (v) optimisations from the SAS Manuals, I would repeat the answers I gave at [260]-[261], and in particular the first one. The authors of the SAS Manuals did not create such compilations, the authors of the SAS System did.”
“… a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground that, for example, a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such.”
“Similarly and more generally, 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.”
“It has already been pointed out that in general terms a work is not reproduced unless what has been produced represents the work in some real sense. A description in a novel of a scene from nature is thus not infringed by a drawing made to depict that scene. So, in the context of a literary work, the copyright in a book which described a method of teaching mathematics was not infringed by making a series of coloured rods which demonstrated that method, the copyright in written instructions for the making of a garment was not infringed by making the garment, and the copyright in the words and numerals in knitting guides was not infringed by making garments to those instructions. Again the copyright in a book of recipes would not be infringed by making a dish according to one of the recipes.”
“The WPL System does not reproduce the description [in the SAS Manuals] of those statistical operations but simply executes them.”
“In this respect, the examination, in the light of Directive 2001/29, of the reproduction of those elements of the user manual for a computer program must be the same with respect to the creation of the user manual for a second program as it is with respect to the creation of that second program.”
“Take the example of a chef who invents a new pudding. After a lot of work he gets a satisfactory result, and thereafter his puddings are always made using his written recipe, undoubtedly a literary work. Along comes a competitor who likes the pudding and resolves to make it himself. Ultimately, after much culinary labour, he succeeds in emulating the earlier result, and he records his recipe. Is the later recipe an infringement of the earlier, as the end result, the plot and purpose of both (the pudding) is the same? I believe the answer is no.”
“The only issue here is whether WPL has reproduced a substantial part of the relevant SAS Manuals. WPL contends that it has gone no further than indirectly copying the content of the SAS Manuals via the WPS source code, and that this is not an infringement because all it has done is to copy the ideas, procedures, methods of operation and mathematical formulae described in the SAS Manuals rather than the expression of the SAS Manuals.” “I have concluded that WPL went further than merely copying the ideas etc. described in the SAS Manuals. For the reasons given in paragraph 148 above, I consider that WPL substantially reproduced the language of the SAS Manuals even though its policy was not to do so. Applying the test laid down in Infopaq, namely whether the parts which have been reproduced express the intellectual creation of the authors of the SAS Manuals, I conclude they do.”
“Important: Please carefully read the terms and conditions of this License Agreement ('Agreement') before clicking on the 'Yes' button. By clicking on the 'Yes' button, the individual licensing the Software ('Customer') agrees to these terms, and SAS Institute Inc ('SAS') will authorize Customer to use the SAS Learning Edition Software ('Software') in accordance with the terms and conditions of this Agreement. If Customer does not agree to all of the terms of this Agreement, click on the 'No' button and return the Software to the supplier from whom Customer obtained it. Customer will receive a refund of licence fees applicable to and paid by Customer for this Software, if any, provided Customer returns the full Software package with proof of purchase within thirty (30) days of date of purchase or the supplier's return period, whichever is the longer. 1. Licence Grant 1.1 In exchange for Customer's payment of all applicable fees and compliance with all of the terms and conditions of this Agreement, SAS hereby grants Customer a[n individual] nonassignable, nontransferable and nonexclusive license to use the Software on one (1) workstation at a time, for Customer's [own self-training] non-production purposes only. Concurrent usage or use on a network is not authorized. 1.2 Customer may not use the Software in any outsourcing, facilities management or service bureau arrangement or any data or information technology management operation by or for third parties. 1.3 … Customer may terminate its license to use the Software by either returning all copies of the Software and associated documentation to SAS or by destroying copies…. 2. Intellectual Property Rights The Software is copyrighted. ... Customer may not reverse assemble, reverse engineer, or decompile the Software or otherwise attempt to recreate the Source Code, except to the extent applicable laws specifically prohibit such restriction…. Customer may not distribute the Software to any third party in modified or unmodified form. 4. Export Restrictions … By accepting this Agreement, Customer affirms that it is located in and is a lawfully admitted permanent resident of a country to which the United States permits SAS to send the Controlled Material. Customer further affirms it is a party to whom the United States allows SAS to provide the Controlled Material… … 9. Complete Agreement This Agreement and any invoices relating to the Software set forth the entire agreement between Customer and SAS related to the Software and supercede any purchase order, communications or representations regarding the Software…. ”
“Subject to the provisions of Articles 5 and 6, the exclusive rights of the rightholder within the meaning of Article 2, shall include the right to do or to authorize: (a) the permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole. Insofar as loading, displaying, running, transmission or storage of the computer program necessitate such reproduction, such acts shall be subject to authorization by the rightholder; (b) the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program…”
“1. In the absence of specific contractual provisions, the acts referred to in Article 4 (a) and (b) shall not require authorization by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction. … 3. The person having a right to use a copy of a computer program shall be entitled, without the authorization 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.”
“Any contractual provisions contrary to Article 6 or to the exceptions provided for in Article 5 (2) and (3) shall be null and void.”
“It must therefore be held that the copyright in a computer program cannot be infringed where, as in the present case, the lawful acquirer of the licence did not have access to the source code of the computer program to which that licence relates, but merely studied, observed and tested that program in order to reproduce its functionality in a second program.” (Emphasis added)
“60. As counsel for SAS Institute accepted, WPL is a legal person. As he also accepted, it obtained copies of the Learning Edition. It did so under licences. It is true that the licences were entered into by particular employees acting as agents for WPL. It is also true that the licences restricted the use of those copies of the Learning Edition to those specific employees. It also true that other employees of WPL used those copies in contravention of that restriction and that WPL is vicariously liable for such use. None of that detracts from the fact that WPL obtained copies of the Learning Edition under licence. 61. It follows that, by virtue of Article 5(3), WPL was entitled without SAS Institute's consent to observe, study and test the functioning of the Learning Edition in order to determine its underlying ideas and principles. In my judgment it does not matter whether it exercised that right by the "licensed" employees or the "unlicensed" employees, leaving aside for the moment the fact that the "licensed" employees committed acts extending beyond the scope of the licence. Article 9(1) renders null and void any contractual restrictions contrary to Article 5(3). In my view this includes a contractual restriction on the employees by whom a legal person in the position of WPL can exercise the right under Article 5(3). 62. To put what is much the same point in a slightly different way, I consider that it makes no difference to the issue with regard to Article 5(3) whether WPL's acts fell outside the scope of the licence because (i) the copies of the Learning Edition it purchased were used by "unlicensed" employees or (ii) the "licensed" employees used the copies of the Learning Edition for purposes which were not permitted by the terms of the licences. Either way, WPL acting by its employees used the Learning Edition in ways which fell outside the scope of the licences.”