Programming languages cannot be copyrighted, says senior EU court adviser

And neither can the functionalities of a computer program

The functionalities of a computer program and programming languages cannot be protected by copyright. according to the European Court of Justice's senior adviser.

Advocate General Yves Bot published his opinion on Tuesday in relation to a case brought by SAS against World Programming. "If it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development," he said.

Bot defined the functionality of a computer program as the set of possibilities offered by a computer system --- in other words, the service the user expects from it --- and as such is not eligible for copyright protection.

By contrast, the means for achieving these functionalities may be protected by copyright. "Creativity, skill and inventiveness are expressed in the way in which the program is drawn up, in its writing. Thus, the way in which formulae and algorithms are will be likely to reflect the author's own intellectual creation and therefore be eligible for protection," he said.

In the SAS case, there is no suggestion that World Programming had access to, or copied, the source code of the SAS components.

SAS makes data processing and statistical analysis programs. The core component of the SAS system allows users to write and run application programs written in SAS programming language. This functionality may be extended by the use of additional components. World Programming created a product that emulates much of the functionality of the SAS components, the aim being that customers' application programs should run in the same way on World Programming as on the SAS components.

In this case, Bot said the courts must consider whether World Programming copied SAS's intellectual creation, but not its functionality. Bot also added that a programming language cannot be protected by copyright since that is an element allowing instructions to be given to the computer.

The advocate general's opinion is not binding on the Court of Justice, but history shows that those opinions are very much taken into account in final rulings.

Follow Jennifer on Twitter at @BrusselsGeek or email tips and comments to jennifer_baker@idg.com.

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