Copyright—Literary work—Infringement—Computer program—American computer marketed in Australia—Source program—Whether literary work—Whether original—Object program—Whether literary work—Infringement by adaptation—Translation—Whether object program translation of source program—Infringement by reproduction—Taiwan computer marketed in Australia containing object program copied from American object program—Whether Taiwan object program reproduction of American source program—Copyright Act 1968 (Cth), ss. 10(1) "adaptation", 22, 31(1), 32, 37, 38.
Decisions
GIBBS C.J.: This appeal from a decision of the Full Court of the Federal Court (Fox and Lockhart JJ, Sheppard J. dissenting) (1984 1 FCR 549 raises for consideration the questions whether, and to what extent, the Copyright Act 1968 (Cth), as amended, in the form which it took before the enactment of the Copyright Amendment Act 1984, recognized and protected copyright in computer programs.
2. The first respondent, a Californian corporation, makes and sells computers under the well-known name of "Apple" and the second respondent is its Australian distributor. The first appellant, a Victorian company, has imported and sold in Australia micro-computers under the name of "Wombat" and the second appellant is the managing director of the first appellant. The respondents' case is that the importation and sale in Australia of the Wombat micro-computer was an infringement of the first respondent's copyright in two computer programs, known respectively as "Applesoft" and "Autostart". The alleged infringements occurred before the commencement of the Copyright Amendment Act 1984, and that Amendment Act, which is intended to protect computer programs, has no relevance to the present case: see s.7(2). References hereunder to the Copyright Act will be to that Act before its amendment in 1984.
3. Computer science makes much use of jargon and metaphor, and to enable the matters in issue to be understood it seems desirable to attempt a brief explanation of the meaning of some of the expressions used in that science and to describe the manner in which a computer program is developed. A computer program is a set of instructions designed to cause a computer to perform a particular function or to produce a particular result. A program is usually developed in a number of stages. First, the sequence of operations which the computer will be required to perform is commonly written out in ordinary language, with the help, if necessary, of mathematical formulae and of a flow chart and diagram representing the procedure. In the present case if any writing in ordinary language (other than the comments and labels mentioned below) was produced in the production of Applesoft and Autostart, no question now arises concerning it. Next there is prepared what is called a source program. The instructions are now expressed in a computer language - either in a source code (which is not far removed from ordinary language, and is hence called a high level language) or in an assembly code (a low level language, which is further removed from ordinary…
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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Details
AGLC
Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19
Case
[1986] HCA 19
Decision Date
CaseChat Overview and Summary
Computer Edge Pty Ltd (Computer Edge) and others were sued by Apple Computer Inc. (Apple) for alleged infringement of copyright in Apple's operating system software for its Apple II microcomputers. Computer Edge had imported and sold microcomputers, which were compatible with Apple's software, and had also supplied copies of Apple's operating system software. The dispute concerned whether the reproduction of Apple's software by Computer Edge constituted copyright infringement. The case was heard by the High Court of Australia.
The central legal issue before the High Court was whether the reproduction of a computer program, which was embedded in a microchip and was essential for the operation of a compatible computer, constituted an infringement of copyright in that program. Specifically, the court had to determine if the "use" of a computer program in the course of operating a compatible machine, where that use necessarily involved the reproduction of the program in the computer's memory, was an authorised act or an infringement of the copyright owner's exclusive rights.
The High Court, by a majority, held that the reproduction of the Apple operating system software by Computer Edge was not an infringement of copyright. The majority reasoned that the Copyright Act 1968 (Cth) protected the expression of an idea, not the idea itself. While the software was protected by copyright, the act of using the software to operate a compatible computer, which necessarily involved its reproduction in the computer's memory, was not an act of "reproduction" in the sense contemplated by the Copyright Act for the purpose of infringement. The court distinguished between the reproduction of the work itself and the use of the work to achieve a functional outcome. The majority found that Computer Edge had not reproduced the program in a way that would constitute infringement, as the reproduction was incidental to the use of the program for its intended purpose in a compatible machine.
The High Court allowed the appeal, setting aside the orders of the Full Federal Court.