To emulate is not to copy

Barry Riley

Having to rely on copyright as a protection for your product is fraught with problems as software developers well know. Many are faced with an ongoing battle to secure protection for their products in the marketplace.

This battle was brought before the courts again recently in a case involving the developer SAS and World Programming Limited who had written a piece of software emulating an SAS system. The programme allowed users to switch to World Programming from SAS saving them the difference between two licence fees of the companies.

SAS objected to this development on grounds (amongst others) of breach of copyright.

The High Court ruled that emulating the system is not copying for the purposes of copyright law reiterating the point that there was no copyright protection in a software language and that, in order for there to be an abuse of copyright, the actual source code would need to be copied.

The Court did, however, pass this matter up to the European Court of Justice who will, in time, rule on whether this interpretation is correct. When settled this decision is likely to have a major impact on European software market and particularly on the ability of smaller developers to “piggy back” on the work of their larger rivals.

Barry Riley
DDI – 0117 9453 042


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