This article argues that competition and innovation in the software industry in the European Union will be seriously undermined if the Court of Justice of the European Union in SAS Institute, Inc v World Programming Ltd holds that copyright protection for computer programs extends to the functional behaviour of computer programs, to programming languages and to data formats and data interfaces essential for achieving interoperability. This article explains why the text and legislative history of the EU Software Directive, in line with international treaty provisions, should be understood as providing protection for the literary aspects of programs, but not to functionality, languages and data interfaces. Copyright has an important, but limited role to play in protecting program innovations, especially in view of the increased availability of patents for functional aspects of software.
The draft version of the article that was published in the EIPR in February 2012 is available on SSRN:
Does Copyright Protection Under the EU Software Directive Extend to Computer Program Behaviour, Languages and Interfaces?