Copyright—Literary work—Infringement—"Computer program"—"Expression, in any language code or notation"—Whether confined to written expression or representation of instructions—Reproduction of work includes reproduction of substantial part—Reproduction of substantial part of computer program—Whether reproduction must be a computer program—Copyright Act 1968 (Cth), ss. 10(1) "computer program", "literary work", "material form", 14(1), 31(1)(a), 36.
Decisions
MASON C.J., BRENNAN AND DEANE JJ. We agree with the judgment of Dawson J. We add some supplementary comments.
2. The definition of "computer program" which was introduced by the 1984 amendments to the Copyright Act 1968 (Cth) ("the Act") focuses upon "an expression, in any language, code or notation" (1) s.10(1) of a set of instructions of the designated kind rather than upon the set of instructions itself. The result is that it is arguable that the effect of the 1984 amendments is merely to recognize copyright in a particular existing "expression" or description of the relevant "set of instructions" in some "language, code or notation". That narrow literal construction would, however, partly frustrate the obvious legislative intent to confer real protection upon the actual set of instructions regardless of whether they be actually expressed in written form or merely embedded or stored in a non-sensate form such as electrical impulses on a disk, ROM or EPROM. Indeed, it is arguable that it would deprive the 1984 amendments of any significant effect since the three Justices who constituted the majority of the Court in Computer Edge Pty. Ltd. v. Apple Computer Inc. (1986) 161 CLR 171, at pp 182-183 (Gibbs C.J.), 201-202 (Brennan J.) and 214 (Deane J.) expressly held or assumed that copyright subsisted in the written expression of the source code while none of them suggested that copyright would not have subsisted in an actual written expression (in language, code or notation) of the object code, if one had existed ibid., at pp 183, 200 and 214.
3. When the definition of "computer program" is read in its context in the Act, however, it appears to us to be clear that the reference to "an expression, in any language, code or notation" should not be understood as referring only to an actual written expression or representation of a set of instructions with the result that copyright does not exist at the time of an alleged infringement unless such a written expression actually exists or has existed at that time. The definition should be understood as conferring protection upon the set of instructions itself but as doing so in a way which is adapted to the nature of copyright. That is to say, the stored set of instructions in a non-sensate form such as electrical impulses is itself protected on the basis that copyright actually subsists in any expression or description of it which can theoretically be made in language, code or notation. On that basis, the test of originality is…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Autodesk Inc v Dyason [1992] HCA 2
Case
[1992] HCA 2
Decision Date
CaseChat Overview and Summary
Autodesk Inc. appealed to the High Court of Australia against a decision of the Full Federal Court concerning alleged copyright infringement of its computer program. The dispute centred on whether the respondent, Mr. Dyason, had infringed Autodesk's copyright in its AutoCAD software by creating and selling a "key emulator" device. This device was designed to bypass the security mechanism of the AutoCAD software, which required a specific hardware key to operate. Autodesk contended that the key emulator, by interacting with the software's code, constituted an unauthorised reproduction of a substantial part of its literary work, namely the computer program.
The High Court was required to determine whether a computer program, as a literary work under the Copyright Act 1968 (Cth), was confined to its expression in written form or if it extended to the functional operation and reproduction of its instructions in a non-written form. Specifically, the court had to consider whether the reproduction of a substantial part of a computer program, for the purposes of copyright infringement, necessitated the reproduction of the program itself as a computer program, or if the reproduction of its underlying code or instructions in a different form, such as the functional operation enabled by the key emulator, could constitute infringement.
The High Court, in allowing the appeal, held that a computer program is a literary work within the meaning of the Copyright Act. The court reasoned that copyright protection extends to the expression of a computer program, regardless of the form in which that expression is embodied. It was determined that the key emulator, by replicating the functional operation of the security code within the AutoCAD program, constituted a reproduction of a substantial part of the copyright work. The court rejected the argument that infringement required the reproduction of the program in a form that was itself a computer program, finding that the functional reproduction of the code's instructions was sufficient to establish infringement. The appeal was allowed with costs.