The Claimant (S) had developed an integrated set of analytical software programs (SAS) which enabled users to carry out a wide range of data processing and analysis tasks, by writing their own application programs in the SAS language. S’s customers over the years developed thousands of application programs written in the SAS language but they required a licence to use the SAS system in order to run their existing SAS language application programs and in order to create new ones. The Defendant (W), represented by Martin Howe QC, Robert Onslow and Isabel Jamal, decided to create an alternative software package that would execute application programs written in the SAS language, by studying the SAS system and writing its own program (WPS) to emulate the its functionality. It was accepted by S that at no point had W had access to or copied the text or structural design of the source code of the SAS components.
S claimed (a) that WPS infringed S’s copyright in the user manuals for the SAS system (b) that by copying the SAS manuals W had indirectly copied the computer programs comprising the SAS components and as such that WPS infringed the copyright in the SAS components (c) that W had used a version of the SAS system known as the Leaning Edition in a way that was not permitted by the licence and as such W had breached the licence terms and infringed the copyright in the learning edition; (d) that W’s own manuals called the WPS manual and the Quick Reference Guide infringed the copyright in S’s manuals.
S challenged the existing view of the English courts, in Navitaire Inc v EasyJet Airline Co Ltd (No3) (2004) EWHC 1725 (Ch), (2005) ECC 30 and Nova Productions Ltd v Mazooma Games Ltd (2007) EWCA Civ 219, (2007) Bus LR 1032, that, pursuant to Council Directive 91/250, it was not an infringement of copyright in the source code of a computer program for a competitor of the copyright owner to study how the program functioned and then to write its own program to emulate that functionality. Even if that was correct, however, S contended that W had nevertheless committed copyright infringement and breach of contract in creating WPS and its accompanying documentation as a result of the way it had gone about those tasks. Arnold J held as follows:
(1) He was not persuaded that the judge in Navitaire had been wrong to conclude that, on the true interpretation of art.1(2) of Directive 91/250, copyright in computer programs did not protect (i) programming languages from being copied; (ii) program interfaces from being copied where that could be achieved without decompiling the object code; (iii) the functions of the programs from being copied (and that this had been upheld by the Court of Appeal in Nova). However he concluded that none of these points were acte clair and as such a reference to the ECJ was needed.
(2) The reasoning which supported the decision in Navitaire on art.1(2) also applied to Directive 2001/29 art.2. That, again, was a question on which guidance from the European Court was required. On the assumption that the Court was right as regards its interpretation of art.1(2) of Directive 91/250 and art.2 of Directive 2001/29 W had not infringed S’s copyright in the SAS manuals by producing or testing WPS.
(3) W’s use of the learning edition fell outside the scope of the terms of the relevant licenses. Its use of the learning edition was within art.5(3) of Directive 91/250, and to the extent that the licence terms prevented that they were null and void, with the result that none of W’s acts complained of was a breach of contract or an infringement of copyright. The interpretation of art.5(3) was, however, another question on which guidance from the European Court was required.
(4) W had infringed copyright in the SAS manuals by substantially producing them in the WPL manual, but had not infringed copyrights in the SAS manuals by producing the WPS reference guides.
Accordingly he referred questions which were answered broadly in line with Arnold J’s provisional views by the ECJ Grand Chamber in Case C-406/10, and Arnold J subsequently gave judgment dismissing the claims of infringement in [2013] EWHC 69 (Ch).