Copyright, emulation and software – is imitation not the sincerest form of flattery?

Software is essential to everyday life, it’s how we carry out research, get our entertainment fix, communicate with each other, manage information, carry out calculations, implement business processes and unleash our creativity. But what if the software you need is out of reach? Can you roll your own version of a tool sold by someone else? This is a difficult question to answer, because even the simplest software is a bundle of different elements, each of which might be protected by a variety of intellectual property rights, such as copyright, design protection, or patents. The concept of writing programs which replicate the functionality of existing software is commonly referred to as emulation. At a high level you can think of it as making sure that if the same information is input into an emulator, then it produces the same output as the software it emulates. A recent court case sheds light on the legality of this practice in the UK. The dispute between the SAS Institute and World Programming dates back to 2009, and arose when WP decided to develop their own version of SAS’ software. While copyright protects the underlying code behind software we use, in this case WP did not have access to the source code, they simply knew what went in and what came out of the software. The WP version would accept the same instructions as the SAS version, read the same file formats, and give the same outputs, but the source code was not copied. The question arising in court was whether copyright protects the set of instructions, or language, that a piece of software will accept – it’s functionality and interface with users, rather than its internals. Why is this important? Well, consider a situation where your business becomes reliant on a particular system, for example a piece of bookkeeping software. Over the years your staff will have become familiar with it, and you might have integrated it with other aspects of your business, such as with payroll, invoicing or tax calculation software. If it becomes unavailable, perhaps because the company that sells it goes out of business, or increases their prices, then you could find yourself with two options: retrain all of your staff to use a replacement, and rewrite your payroll, invoicing and other software to work with it; or create a replacement that can slot in to fill the gap. Clearly, the best approach depends on how important this particular software is to you. If it’s only used by one member of staff, and there’s a cheap alternative which is simple to learn then resolution is easy, but if there isn’t an alternative, or if it’s embedded into your processes and procedures, then rolling your own could be a far more attractive option. However, if copyright were to protect the way you use software, i.e. the set of instructions it accepts, this wouldn’t be an option. Although there were other questions involved, this is the issue raised in the SAS v WP dispute with the potential to have far reaching implications. The judge, the Honorable Mr Justice Arnold, answered most succinctly:

• In short, copyright in a computer program does not protect either the programming language in which it is written or its interfaces (specifically, its data file formats) or its functionality from being copied. 

So, at least for the moment, you are likely to be entitled to develop or commission programs which emulate the functionality of other piece of software, provided that you do not actually copy source code or other protected works which make up the original. Please do leave a comment if you think this is likely to affect you, or if you have any comments on the issue.