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Your conclusion is sort of correct, but the devil is in the details.

The reason that the judge says it is only his "provisional view" is that the issue of whether the SAS programming language can be copyrightable was never brought up at the initial trial. The lawyers for the plaintiffs were attempting to amend their claim based on the wording from the European Court of Justice from the same proceedings.

Procedurally, this is what happened: (1) lawyers claimed a bunch of stuff in the first trial mostly about the manuals and the source code and not the underlying language itself; (2) the English court decided on some issues, but had questions about the EU Software Directive which it referred to the CJEU; (3) the CJEU issued a decision that on its face looked like it was not entirely favourable to the plaintiffs; (4) when the case came back to England, the plaintiffs' lawyers tried to add the claim of copyright infringement in the language to the trial.

The judge says at paragraph 26 that the plaintiffs were not entitled to amend their claims on this issue since they didn't raise it before the trial.

Therefore, strictly speaking, everything that this judge says about the copyrightability of programming languages is 'obiter dicta' - that is, it has no binding value because those comments were irrelevant to the ruling. The decision could have been made without those comments. In the common law tradition, obiter is not binding (and it is usually claimed in law schools that obiter is bad form for judges, but they like to talk about it anyway because judges can do whatever they want).

So you are basically correct - the judge decides nothing, and this case does not actually decide whether programming languages are copyrightable (though based on the judge's interpretation, it is his opinion that it is not). In any case, this is a High Court decision, which is pretty low on the hierarchy so even if they did decide so, it would only be a relatively weak precedent.



I should add that substantively, the conclusion that programming languages can't be copyrighted is relatively well supported from past cases. Generally one can't copyright rules to a game or contest, and one can't copyright facts or algorithms. This principle has been extended, at least in the US, to the whole idea that one cannot copyright systems and processes (see §102 of the copyright act).

This is slightly more complicated in the EU because of the Information Directive and the Software Directive, which grants copyright to more portions of software than the common law used to, and also gives copyright to 'intellectual works' (whether this is the same as an 'original work' requirement in the common law world is still up for debate).




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