Ireland IP & Technology Law Blog : Dublin Lawyers & Attorneys for Intellectual Property, Communications & Information Technology Law in Ireland, U.S. & England

The recent UK High Court case of SAS Institute Inc. –v- World Programming Limited marks a significant legal development for software developers in relation to the scope of copyright protection for computer software and source codes in the European Software Directive. The UK High Court has ruled that copyright protects the source code of the software program as a literary work but that the replication of software functionality without access to source codes, at whatever level of detail, is not an infringement of copyright. The judgment has been referred to the European Court of Justice (ECJ) for confirmation of this interpretation of the Software Directive.

SAS Institute Inc. (SAS), one of the world’s largest developers of analytical software, lost it’s case in the UK High Court against World Programming Limited (WPL) for the misuse of the SAS Learning Edition, breach of licence terms, copyright infringement and other IP infringements in respect of it’s SAS System.

WPL developed it’s own language interpreter software product called World Programming System (WPS) to execute application programs written in the SAS Language and which emulated the functionality of the SAS Components in direct competition with SAS’s own products. The WPS software was created without access to SAS’s source codes.

Arnold J held that EU law protected WPL from breach of SAS's licence terms where WPL used the SAS Learning Edition to observe, study and test its programming functions when it developed it's WPS software product.

While the precise wording of the reference to be made to the ECJ is yet to be formulated, it will seek confirmation as to whether programming languages, interfaces and functional aspects of software are excluded from protection under Article 1(2) of the Software Directive and the extent of the exclusion from infringement for acts of observation, studying and testing of a program under Article 5(3).

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The first Interactive Advertising Bureau, Ireland (IAB) and PwC adspend study has revealed that:

• online advertising in Ireland approached the €100m threshold in 2009; and
• the online advertising sector achieved 10% of Irish adspend in 2009.

The study shows the importance of the Irish online advertising industry, and its resilience during recent economic conditions.  The growth in online advertising in Ireland also reflects the fact that more Irish people are now online. A report published this month by the Commission for Communications Regulation (ComReg) shows that PC and/or laptop ownership continues to grow in Ireland and that over three quarters of Irish adults use the internet for personal use.

With 75% of the participants in the IAB/PwC study predicting growth or strong growth in 2010, the outlook for the Irish online advertising industry is very positive.

For more information on the IAB/PwC adspend study, click here, and click here to be directed to the link to the ComReg study.

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The EC Commission has launched this month a public consultation on the future of electronic commerce in the internal market, and the implementation of the Directive on electronic commerce (2000/31/EC) (the Directive).

The Commission wishes to undertake the consultation for two reasons namely, it wishes to study the many reasons for the limited takeoff of e-commerce in the EU and to evaluate the implementation of the Directive.

All interested parties are required to submit their responses to the questionnaire by 15 October 2010. The Commission has specified target groups from whom comments would be particularly welcome, for example Ministries responsible for various aspects of e-commerce; economic operators of the information society; the regulated professions – pharmacists, lawyers and magistrates; consumers and consumer associations; and rightsholders and organisations representing them.

The Commission is seeking the views of interested parties on the following subjects:

• the level of development of information society services;
• issues concerning the application of Article 3(4) of the Directive by Member States – which concerns Member States’ ability to take measures to derogate from the general principle that Member States must not restrict the freedom to provide information society services from another Member State;
• contractual restrictions on cross-border online sales;
• cross-border online commercial communications, in particular by the regulated professions;
• the development of online press services;
• the interpretation of the provisions of the Directive concerning the liability of intermediary information society service providers;
• the development of on-line pharmacies; and
• the resolution of on-line disputes.

The questionnaire is available online here.

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The European Communities (Audiovisual Media Services) Regulations were adopted on 3 June 2010.  These Regulations transpose the remaining parts of the Audiovisual Media Services Directive, which was published in the Official Journal of the European Communities on 18 December 2007.  The Regulations include provisions in respect of on-demand audiovisual media services and subject providers of such services to regulation by the Broadcasting Authority of Ireland.

Click here to view the new Regulations.

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The European Commission has recently adopted the new Vertical Restraints Block Exemption Regulation and Guidelines (VRBE).  These rules came into force on 1 June 2010 but provide for a one year transitional period for existing agreements. They will remain in force for a period of 12 years. The new VRBE reflects developments in the past 10 years, most notably the growth of the internet as a tool for online sales.

The regulation exempts a wide range of vertical agreements from the prohibition on agreements that restrict competition. It does not apply to agreements containing ‘hardcore restrictions’ whose ‘object is to segment markets to the detriment of consumers’.

The new rules address the question of online sales. The guidelines provide examples of restrictions online that would be considered ‘hardcore’ restrictions. These include agreements requiring a distributor to:

(a)        prevent customers located in another territory from viewing its website or automatically rerouting its customers;

(b)        terminate a transaction over the internet once credit card data reveals an address that is not within the distributor’s territory;

(c)        limit the proportion of overall sales made over the  internet - this does not exclude a supplier requiring a buyer to sell at least a certain amount of products offline in order to ensure an efficient operation of its brick and mortar shop; and

(d)        pay a higher price for products intended to be resold by the distributor online, than for products intended to be resold offline.

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The ECJ has ruled that Anhueser-Busch InBev should be restricted from registering the word ‘BUDWEISER’ as a Community trade mark.  This decision puts this particular aspect of the long running legal battle between the two parties to an end.  The drama began on 1 April 1996 when Anheuser-Busch filed an application with OHIM for registration as a Community Trade Mark of the word sign ‘BUDWEISER’.

Anheuser Busch still holds the trade mark rights for the words ‘BUD’ and ‘BUDWEISER’ in 23 EU countries, and the decision to refuse registration of a Community trade mark has no bearing on the standing of these EU national rights.

It remains to be seen what the next chapter of this interesting legal battle will bring.
 

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