When a chef decides to bake a cake, the expression of his intellectual creation is not the cake but rather the recipe for the cake. For a developer of a computer program, the expression of his intellectual creation is not the functionality of the program but rather the underlying source code.

What is protected by copyright is the recipe for the cake and the source code for the program. This is the analogy which was referred to recently by the Court of Appeal in a long-running dispute about the extent to which copyright can be used to protect the functionality of a computer program.

Background

Readers of this bulletin may recall that last year we reported on a judgment of the European Court of Justice (the ECJ) in the case of SAS Institute Inc v World Programming Limited. The case concerned the issue of whether there is any copyright protection for the functionality of a computer program and what a licensee of the software is entitled to do in analysing that functionality. WPL was a licensee of the SAS software and wished to produce alternative software with similar functionality.

The principles established by the ECJ were that:

  • the functionality of a computer program, its programming language and the format of the data files used are not protected by copyright;
  • a person who lawfully obtains a copy of a computer program under licence may, without the express authorisation of the copyright owner, observe, study or test the functions of the program in order to determine the underlying ideas and principles of that program; and
  • a user manual for a computer program will be protected by copyright to the extent that it is the expression of the intellectual creation of the author (and copyright will be infringed if a substantial part has been reproduced).

In the Court of Appeal

The law of copyright distinguishes between ideas and the expression of those ideas. Copyright does not protect ideas but it does protect the expression of those ideas. In the context of computer software this means that the ideas behind the software and what it is intended to do will not be protected by copyright. The judgment of the Court of Appeal has confirmed that copyright does not protect the functionality of a computer program and this applies whether that functionality is found by studying the program itself or any description of the program in its user manual.

This judgment will be welcomed by those developers who wish to create programs which replicate the functionality of more established software. It encourages rather than discourages innovation and competition between software developers. It also comes as a warning to software developers in general against including too much detail about the functionality of the software in any associated documentation.

So it seems that if you are developing computer programs you can have your cake and eat it... as long as in doing so you don't copy the recipe/source code.

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