Presentation held on 6th November 2015 in ITechLaw's European Conference in London where I led ITechLaw's IP Committee's workshop. We discussed the recent decisions affecting protection of functional elements of computer programs via copyright in light of SAS v. WPL and Oracle v. Google cases, as well as the related Finnish case law. In this interactive session we covered copyright protection for functionalities in computer programs, programming languages, interfaces, and several other interesting topics comparing EU and US regimes, also covering right to contractually limit information in public domain in IT sector and other fields. Statements were intentionally provocative to facilitate discussions so these do not necessarily represent my personal views.

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Partner, M.Jur (ECL) JAN LINDBERG
ITechLaw 6 November 2015
IP Workshop

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Copyright Protection of a Software as a
Work with Functional Elements

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JAN LINDBERG
LLM 2001 (University of Helsinki)
MJur 2003 (University of Oxford)
Mergers and Acquisition, Outsourcing
Private Equity and Venture Capital
IP and Technology, IT Disputes
Jan.lindberg@thetrust.fi
+358 (0)40 823 6031
www.thetrust.fi

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Who Are We?
Attorneys-­at-­Law TRUST. is a Finnish transaction boutique focusing on the most
demanding M&A, outsourcing, private equity and venture capital, complex
technology and IP assignment. We ranked in all legal surveys among the oldest
and largest firms in Finland. We operate in the energy sector, telecom, information
technology, biotech, fintech, financial regulation and banking assignments.
E-­mails: firstname.lastname@thetrust.fi
Mannerheimintie 20 B, 6th floor, Helsinki, Finland

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What is the Agenda and Scope of this
Workshop?
• In this workshop we are focusing on the element of functionality and its effects
on availability of copyright protection
• How far can copyright protect functional elements?
• Is copyright protection available in case of trial and simple computer
programs(i.e., in embedded systems)?
• Open discussion

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Copyright
• “A person who has created a literary or artistic work…”
• Originality, teoskynnys (Finnish), or similar “the product of
independent and original creative work” by the author.
• “…within the limitations imposed hereinafter, copyright shall
provide the exclusive right to control a work by reproducing it
and by making it available to the public, in the original form or
in an altered form, in translation or in adaptation, in another literary or
artistic form, or by any other technique.”

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SAS Institute Inc. v World Programming Ltd
(UK)
• Lengthy proceeding, with cases in the USA and the UK (with referral to the ECJ)
• SAS was the owner of the SAS System that enabled its users to perform data
processing and analysis tasks
• WPL had licensed the Learning Edition of the SAS System, enabling it to study
and use the SAS System
• On the basis of its tests and study, WPL had developed a competing system that
was interoperable with the SAS system
• Replication of the functionality of certain parts of the SAS System
• No access to the source code and written in a different programming
language
• Enabled SAS users to change systems, which was previously practically
impossible

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SAS Institute Inc. v World Programming Ltd
(UK)
• SAS accused WPL of:
• copyright infringement (software program and manual)
• breach of its license agreement (non-­permitted use)
• The case was ruled largely in the favor of WPL

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Oracle Am., Inc. v Google Inc. (US)
• In November 2007 Google released the beta version of its Android mobile
platform
• In August 2010, Oracle first sued Google for copyright and patent infringement
• In May 2012 and District Court decided on copyright protection of APIs
• In May 9 2014 judgment form the Federal Appeals Court
• In June 29 2015 Supreme Court declines to hear Oracle v. Google case over
software copyright
• Issue of “fair use” still open

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Oracle Am., Inc. v Google Inc. (US)
• At [22] “…Because we conclude that the declaring code and the structure,
sequence, and organization of the API packages are entitled to copyright
protection, we reverse the district court’s copyrightability determination with
instructions to reinstate the jury’s infringement finding as to the 37 Java
packages.”
• At [52] “…We are mindful that the application of copyright law in the computer
context is often a difficult task. [...] On this record, however, we find that the
district court failed to distinguish between the threshold question of what
is copyrightable-­-­which presents a low bar-­-­and the scope of conduct that
constitutes infringing activity. The court also erred by importing fair use
principles, including interoperability concerns, into its copyrightability analysis.”

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Case “Karelian Pie” (FI)
When is a computer program of an embedded system protected by
copyright?
• Requirement: “the product of independent and original creative work” by the
author
• According to an opinion of the Finnish Copyright Committee (1987:8): “a trivial
program consisting mainly of functions obvious to a professional user does not
meet the threshold of originality and is thus not protected by copyright.”

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Case “Karelian Pie” (FI)
Case “Karelian Pie” – a simple machine used to make Karelian pies
District Court:
“The only evidence of that the program meets the threshold of originality is the
opinion of the Copyright Council. Given that the opinion is…defective (based on
incorrect facts), and all other clarification, especially the statements by experts G
and J, seem to lead to the conclusion that the program is too trivial to meet the
threshold of originality, and thus the district court concludes that the program being
protected by copyright remains unsubstantiated.”

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Case “Karelian Pie” (FI)
Court of Appeal:
“According to Article 1 of Directive 91/250/EEC on the legal protection of computer
programs, a computer program shall be protected if it is original in the sense that it
is the author's own intellectual creation. Other criteria shall not be applied when
assessing, whether the program is protected.”
“In the light of the directive, it seems obvious that computer programs quite easily
meet the threshold of originality”
“Taking into consideration the principles outlined in the directive, the Court of
Appeal concludes -­-­ that the computer program subject to the claim shall be
deemed a literary work referred to in Section 1 of the Copyright Act.”

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Open discussion

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“Copyright protection of computer
programs is narrower in the EU as in the
US”

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“Software industry should not be treated
differently if compared to other industries
and therefore contractual restrictions to
studying, observation and testing of any
licensed technology should be valid”

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“Interfaces should not be subject to
copyright protection”

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“Programming languages should have
copyright protection”

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“There is no computer program simple
enough to be denied copyright protection”

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“Copyright is not the correct form of
protection for computer programs and
functional elements”

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THANK YOU !