The long-running saga that is the litigation between SAS and WPL may at least have come to a halt, although there remains room for further appeal. In a carefully reasoned judgment in SAS Institute Inc v World Programming Limited [2013] EWHC 69 (Ch), the Hon Mr Justice Arnold dealt with each of the responses from the Court of Justice of the European Union (CJEU) to the questions that were referred in the case but came to a conclusion that fitted neatly with the approach he had outlined before the relevant references were made. In short SAS lost in their claim that the WPL attempts to reproduce SAS functionality amounted to a breach of copyright. They had a consolation win on the minor point that WPL was in breach of copyright in reproducing parts of the SAS manuals.
Crucially, as he states at [16]:
There was an issue as to whether or not any claim to copyright in the SAS Language had to be pleaded; it wasn’t but Arnold J considered that he had to be if such a distinct copyright claim was to be made.
Hamish Sandison, IT law partner in Field Fisher Waterhouse’s London office, welcomed the decision.
“By confirming every aspect of his first judgment, and by adopting the reasoning of the European Court in doing so, Mr Justice Arnold has introduce a much-needed degree of certainty into an uncertain area of copyright law. He strikes a fair balance between the rights of the first software developer and a newcomer by reaffirming that the first developer may prevent the newcomer from getting a free ride from literal copying of its program manuals, while at the same time making clear that the newcomer is at liberty to copy the functionality of the first program. It is disappointing perhaps that the English Court did not rule on whether a programming language can be protected as a distinct copyright work. But this point was not pleaded in time and it must await another day.”
