The European Court of Justice has published its decision in Europe’s Oracle v Google equivalent, SAS v WPL.

The case dealt with, amongst other things, with the issue of whether WPL infringed SAS’s copyright by developing a competing platform for running scripts created in SAS’s proprietary script language. WPL’s run-time platform was designed to emulate SAS’s own platform to the extent, that it accepted the same inputs by scripts and provided the same outputs, so that a SAS script could run on WPL’s platform as well.

SAS claimed the development of WPL’s run-time environment infringed SAS’ copyrights in the “functionality of a computer program and the programming language and the format of data files used in a computer program”.

According to the Court of Justice, WPL did not infringe SAS’s copyrights because the allegedly copied elements were not protected under EU copyright law. According to the court (at paragraph 46),

“neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive.”

In other words, comparing this to the copyright issue in Oracle v Google, under EU copyright law Google would not infringe copyright if it would merely reproduce Oracle Java’s functionality, the actual Java language, or file formats used by Java.

There is, however, a significant difference between Oracle v Google and the case at hand in Europe. The alleged infringer in the EU case, WPL, never had access to the source code of SAS’s own run-time environment. Google, on the other hand, has copied parts of Oracle’s Java, with the issue merely being whether the copied parts were protected and whether Google had a license for the copying. The Court of Justice points out this material difference clearly in paragraph 43 of its opinion, where it states that:

In that context, it should be made clear that, if a third party were to procure the part of the source code or the object code relating to the programming language or to the format of data files used in a computer program, and if that party were to create, with the aid of that code, similar elements in its own computer program, that conduct would be liable to constitute partial reproduction within the meaning of Article 4(a) of Directive 91/250.

Thus, although the SAS v WPL case brings welcome clarity to the scope of copyright protection of computer programs in the EU, it is arguably too early to say that a finding of copyright infringement in the Oracle v Google case would bring US copyright law into conflict with EU copyright law.
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