Can a Programming Language be Protected by Copyright?

In SAS Institute Inc v World Programming Ltd ([2010] EWHC 1829), Justice Arnold considered, but did not decide, whether a programming language can be protected by copyright in the European Union (EU). SAS Institute Inc (SAS) licenses software that executes programs written in the SAS language. The language is an example of what used to be referred to as a fourth-generation programming language (or “4GL”), which provides single commands that may invoke procedures of arbitrary, and often very high, complexity. Using the SAS manuals, World Programming Ltd (WPL) copied the functionality of the SAS software as precisely as it could, effectively recreating a large portion of the SAS product. They did this without any copying of SAS’s actual source code, to which they did not apparently have access. WPL went to the extent of deliberately copying existing errors. For example, one comment in their code stated “This is probably a SAS bug but since we do not know what else to do we copy this buggy behaviour.” Although copying the functionality per se is clearly not an infringement of copyright, SAS attempted to argue that the language itself was protected by copyright and that copying of the manuals amounted to indirect copying of the software. Not without some difficulty, Justice Arnold concluded that the SAS language is a programming language. Interestingly, in deciding this he expressly relied on an “anonymous author of the entry for ‘SAS language’ in Wikipedia”. An earlier judgment of the same Court had found that, based on the EU Software Directive, programming languages are not protected by copyright. Justice Arnold declined to find that the earlier decision was incorrect, but also declined to rule on the issue. Rather, he referred this and other issues to the European Court of Justice. However, he did find that WPL infringed the copyright in the SAS manuals and that WPL had breached certain licence agreements. For the full text of the judgment, see: http://www.bailii.org/ew/cases/EWHC/Ch/2010/1829.htm. (Some readers may find the use of colour highlighting in the judgment to be unusual.) Summary by: Tom Feather