Williams Powell

British and European Patent and Trade Mark Attorneys

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Can copyright cover software functionality in Europe? EU Advocate General thinks not.

The boundary between types of Intellectual Property is not always clear. Occasionally, different Intellectual Property types may provide overlapping protection.  For example, a widget may be protectable by both patents and registered designs.

One argument that is raised by opponents of patents for computer implemented inventions is that copyright already provides more suitable protection. However, the extent to which copyright protection extends beyond the code into the "look and feel" or functionality of software has, at least in the UK, never been clear. Copyright infringement generally requires copying of the copyright material to be proven.  Computer software is protected in Europe as a written work and therefore a logical (although narrow) construction would be that copying must be of the written work - the software code, object code, binaries etc. However, UK Courts have reached different conclusions in the past, providing at least some protection under copyright to look and feel.

This issue is the subject of the case SAS Institute Inc v World Programming Ltd that is being considered by the UK High Court.  There appears to be no dispute over copying of actual code - SAS's complaint is that World Programming Ltd copied functionality of the SAS system and its language. As UK law in thsi area is set at the EU level, there is only limited discretion for the Courts to interpret issues it may consider to be unclear.  In the present case, the Judge has referred several questions to the European Court of Justice on interpretation of the law.

As part of the referral process, the EU Advocate General has issued an opinion suggesting that the narrow construction set out above is correct.  He suggests that the Court of Justice should hold that copying of functionality is not an infringement of copyright provided that a substantial part of the original program (code) is not reproduced in the process of copying that functionality.

Guidance on proper interpretation of the law in this area can be expected from the Court of Justice in due course.  The Court of Justice is not bound by the Advocate General's opinion and does sometimes reach different conclusions/interpretation of the issues.  Nevertheless, the scope of copyright protection of computer programs in Europe could well be clarified (and narrowed) shortly.

My personal opinion is that the Advocate General's opinion is correct -  Protection of functionality should be left to the patent system, copyright is about protection of the expression not the idea.