Edited by Tanya Aplin
Chapter 2: Copyright in software: functionality
Computer software differs from most other types of copyright works in that it is almost always created in order to perform a particular function or set of functions. Once it was decided to protect software by copyright, and in particular to treat computer programs as literary works, it was inevitable that questions would arise as to the extent to which copyright in a computer program afforded protection for the functionality of the program. This issue became entwined with two more general and longstanding issues in copyright law: first, the idea/expression dichotomy; second, infringement through nonliteral copying. In addition, it became necessary to provide exceptions tailed to the functional character of software. The importance of these questions is highlighted by the need for interoperability between computer programs. The leading case on these issues in the EU is SAS v WPL. This chapter considers the current state of the law in the light of the judgments of the CJEU and of the English courts in that case. It concludes that the law is now clear in some respects, but not in others.
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