The decision to protect computer programs under copyright then led to a series of very important questions about the scope of their protection. Did copyright protect graphical users interfaces, application programming interfaces (APIs), program structure, sequence and organization (SSO), data and file formats and structures, and programming languages? Given that copyright does not protect ideas, systems, processes, functionality, or methods of operation, what parts of computer programs could be protected and could be copied without infringing copyright. Could computer programs be reverse engineered without infringing copyright and would creating interoperable or compatible programs infringe?

These issues have been the subject of numerous, sometime conflicting decisions, around the world for the last two decades. The answers significantly impact the important boundary between protecting original creative efforts and promoting innovation and hindering competition in the tech industry.

The scope of protection for programs is now in the forefront again in two continents. The issue is front and centre in the litigation between Oracle and Google over the protection of Java APIs used by Google in creating the Android operating system.  Yesterday the jury returned a verdict finding that Google infringed copyright, but failed to reach any verdict on whether Google’s copying was protected by fair use. It is widely expected that the presiding judge will rule on the question of law whether APIs can be protected by copyright in the US very soon.

Meanwhile, across the Atlantic, the ECJ yesterday released its reasons in he SAS Institute v World Programming Limited case. The court answered a series of questions posed to it by an English court dealing with the scope of protection for functional aspects of a program. The court answered the questions siding for the most part with the defendant on the issue of copyright protection for programming languages and the format of data files. However, anyone looking for a solid analysis of the issues will be disappointed with the decision.

The first set of questions addressed by the court were whether Article 1(2) of Directive 91/250 must be interpreted as meaning that the functionality of a computer program and 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 and may, as such, be protected by copyright in computer programs for the purposes of that directive. The court answered this question in the negative saying:

In accordance with Article 1(1) of Directive 91/250, computer programs are protected by copyright as literary works within the meaning of the Berne Convention.

Article 1(2) of Directive 91/250 extends that protection to the expression in any form of a computer program. That provision states, however, that the ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under that directive.

The 14th recital in the preamble to Directive 91/250 confirms, in this respect, that, in accordance with the principle that only the expression of a computer program is protected by copyright, to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected under that directive. The 15th recital in the preamble to Directive 91/250 states that, 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.

With respect to international law, both Article 2 of the WIPO Copyright Treaty and Article 9(2) of the TRIPs Agreement provide that copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

Article 10(1) of the TRIPs Agreement provides that computer programs, whether in source or object code, are to be protected as literary works under the Berne Convention.

In a judgment delivered after the reference for a preliminary ruling had been lodged in the present case, the Court interpreted Article 1(2) of Directive 91/250 as meaning that the object of the protection conferred by that directive is the expression in any form of a computer program, such as the source code and the object code, which permits reproduction in different computer languages (judgment of 22 December 2010 in Case C?393/09 Bezpecnostni softwarova asociace [2010] ECR I?0000, paragraph 35).

In accordance with the second phrase of the seventh recital in the preamble to Directive 91/250, the term ‘computer program’ also includes preparatory design work leading to the development of a computer program, provided that the nature of the preparatory work is such that a computer program can result from it at a later stage.

Thus, 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 (Bezpecnostni softwarova asociace, paragraph 37).

From this the Court concluded that the source code and the object code of a computer program are forms of expression thereof which, consequently, are entitled to be protected by copyright as computer programs, by virtue of Article 1(2) of Directive 91/250. On the other hand, as regards the graphic user interface, the Court held that such an interface does not enable the reproduction of the computer program, but merely constitutes one element of that program by means of which users make use of the features of that program (Bezpecnostni softwarova asociace, paragraphs 34 and 41).

 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 Article 1(2) of Directive 91/250.

The court’s decision was short on policy. But, on this question it sided against protection in order to foster competition in compatible programs:

As the Advocate General states in point 57 of his Opinion, to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

Moreover, point 3.7 of the explanatory memorandum to the Proposal for Directive 91/250 [COM (88) 816] states that the main advantage of protecting computer programs by copyright is that such protection covers only the individual expression of the work and thus leaves other authors the desired latitude to create similar or even identical programs provided that they refrain from copying.

 With respect to the programming language and the format of data files used in a computer program to interpret and execute application programs written by users and to read and write data in a specific format of data files, these are elements of that program by means of which users exploit certain functions of that program.

In that context, it should be made clear that, if a third party were to procure the part of the source code or the object code relating to the programming language or to the format of data files used in a computer program, and if that party were to create, with the aid of that code, similar elements in its own computer program, that conduct would be liable to constitute partial reproduction within the meaning of Article 4(a) of Directive 91/250.

As is, however, apparent from the order for reference, WPL did not have access to the source code of SAS Institute’s program and did not carry out any decompilation of the object code of that program. By means of observing, studying and testing the behaviour of SAS Institute’s program, WPL reproduced the functionality of that program by using the same programming language and the same format of data files…

Consequently, the answer to Questions 1 to 5 is that Article 1(2) of Directive 91/250 must be interpreted as meaning that 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 and, as such, are not protected by copyright in computer programs for the purposes of that directive.

A second set of questions addressed whether Article 5(3) of Directive 91/250 must be interpreted as meaning 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 in that program, to observe, study or test the functioning of that program in order to determine the ideas and principles which underlie any element of the program, in the case where that person carries out acts covered by that licence with a purpose that goes beyond the framework established by the licence. The court reviewed the EU Directive and answered yes.

…Article 5(3) of Directive 91/250 must be interpreted as meaning 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 the program, in the case where that person carries out acts covered by that licence and acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner of the copyright in that program.

The last set of questions asked whether Article 2(a) of Directive 2001/29 must be interpreted as meaning that the reproduction, in a computer program or a user manual for that program, of certain elements described in the user manual for another computer program protected by copyright constitutes an infringement of that right in the latter manual.

The court’s answer to this question is puzzling. After having found that programming languages and file formats are not protected by a computer program’s copyright, the court nevertheless expressed the opinion that a compilation of a programming language’s elements contained in a program manual could be protected by copyright if found to be original (an author’s intellectual creation) and that copying these features in another program or program manual could be infringing.

It is apparent from the order for reference that the user manual for SAS Institute’s computer program is a protected literary work for the purposes of Directive 2001/29.

The Court has already held that the various parts of a work enjoy protection under Article 2(a) of Directive 2001/29, provided that they contain some of the elements which are the expression of the intellectual creation of the author of the work (Case C?5/08 Infopaq International [2009] ECR I?6569, paragraph 39).

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.

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 (see, to that effect, Infopaq International, paragraph 45).

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.

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.

Consequently, in the light of the foregoing considerations, the answer to Questions 8 and 9 is that Article 2(a) of Directive 2001/29 must be interpreted as meaning that the reproduction, in a computer program or a user manual for that program, of certain elements described in the user manual for another computer program protected by copyright is capable of constituting an infringement of the copyright in the latter manual if – this being a matter for the national court to ascertain – that reproduction constitutes the expression of the intellectual creation of the author of the user manual for the computer program protected by copyright.

So what is the upshot of the case? Is it that under EU law a programming language cannot be protected by a computer program’s copyright but can be when those same elements are contained in a literary work like a manual? After three decades of copyright law protecting computer programs and numerous cases which have explored the proper scope of protection, is this the best the ECJ could do?

Ironically, the first court to consider the reasons in the SAS v WPL case may be  Judge William Alsup. the Judge presiding over the Oracle v Google case. He asked the litigants to file briefs which include answering a question on the implication of the case on the legal protection for APIs. Both parties were well aware of the SAS v WPL case and had disagreed about its potentiasl relevance even before they before they were asked by the court to comment on it.