SAS Institute Inc v. World Programming Limited The ECJ Reference And Potential Implications For Software Licensors

The proceedings between SAS Institute Inc ("SAS") and World Programming Limited, ("WPL") which led to an extensive judgment from Mr Justice Arnold in July 2010¹, have resulted in nine questions, principally relating to the interpretation of the Software Directive,² being referred to the Court of Justice of the European Union ("ECJ").³

With the parties having now filed their written observations, the outcome of the reference may be anticipated later this year or early 2012.

The ECJ is expected to provide clarification not only on the scope of protection for computer programs in Europe, including whether "function" embodied in a literary work is expressly excluded from protection, but also the extent to which exceptions in Article 5(3) allow cloning of software.