Sometimes, it’s not what happens that’s important, but what happens next. A case in the English High Court has confirmed what the software industry has known for some time: that it is not copyright infringement in the UK merely to copy the functionality of a computer program. But the real implications of the case will not become clear for some time and, when they do, they may be significant for the software industry. Even while giving its judgment, the English High Court has referred to the European Court of Justice several fundamental questions about the extent of copyright protection for software. When it eventually comes, the ECJ’s decision could significantly change the way in which software companies produce and protect their products, and market their software right across the European market.

In SAS Institute, Inc. v. World Programming Limited, the English High Court was asked to consider whether software and manuals created by World Programming (“WPL”) infringed SAS Institute’s (“SAS”) copyright in its analytical software and manuals. The case concerned the “non-literal” copying of SAS’s software that occurred when WPL created a similar program that was designed to generate responses identical to those delivered by SAS’s software.