Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49 30 September 1999 M113/1997
ORDER
Appeal dismissed with costs.
Special leave to cross-appeal granted; cross-appeal treated as instituted and heard instanter and dismissed with costs.
Costs of appeal and cross-appeal are to be set off.
On appeal from the Federal Court of Australia
Representation:
J M Emmerson QC with A K Panna for the appellant (instructed by Stephens Lawyers & Consultants)
R C Macaw QC with J F Bleechmore for the respondents (instructed by Trumble Szanto Lawyers)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Data Access Corporation v Powerflex Services Pty Ltd
Intellectual property – Copyright – Subsistence and infringement of copyright – Computer software.
Subsistence of copyright – Computer languages – Words used as commands in one computer language used as commands with identical functions in another computer language – Whether copyright subsists in an individual command – Whether an individual command is itself a "computer program" within s 10(1) of the Copyright Act 1968 (Cth).
Infringement of copyright – Computer program – Application development system designed to enable computer programs to be written using certain commands – Whether a collocation of those commands constitutes a "substantial part" of the application development system – Test of substantiality as applied to computer programs.
Infringement of copyright – Computer program – Whether a macro in one computer program is an "adaptation" of a macro with the same functionality in another computer program – Meaning of "version" in s 10(1) of the Copyright Act 1968 (Cth).
Subsistence of copyright – Computer data table used for standard data compressions – Whether the data table is an "original literary work".
Infringement of copyright – Whether process devised to replicate a computer data table by examining its output constitutes a "reproduction" of the table.
Words and phrases – "adaptation" – "computer program" – "literary work" – "reproduction" – "set of instructions" –"substantial part" – "version".
Copyright Act 1968 (Cth), ss 10(1), 14(1)(b), 31(1)(a)(i), 36(1).
GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. Pursuant to the grant of special leave to appeal, Data Access Corporation ("Data Access") appeals to this Court against orders[1] of the Full Court of the Federal Court (Black CJ, Hill and Sundberg JJ) which were based on a holding that copyright as original literary works did not subsist in commands in the Dataflex computer language contained in a computer program developed by Data Access in the United States. The Full Court, reversing the judgment of the trial judge, Jenkinson J[2], held that those commands were not "computer programs" within the meaning of the definition in s 10 of the Copyright Act1968 (Cth) ("the Act") and were not entitled to protection under that statute.
[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
Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49
Case
[1999] HCA 49
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal from the Full Court of the Federal Court of Australia concerning alleged copyright infringement of computer software. The parties involved were Data Access Corporation, the owner of the copyright in the "Dataflex" system, and Powerflex Services Pty Ltd, the alleged infringer. The dispute centred on whether individual commands within a computer language, a data table used for data compression, and macros constituted copyrightable subject matter or infringed existing copyright.
The court was required to determine several key legal issues. Firstly, whether individual words used as commands in one computer language, which performed identical functions in another language, were themselves "computer programs" for the purposes of copyright subsistence. Secondly, the court had to consider whether a collection of such commands constituted a "substantial part" of a computer program, and what test applied to determine substantiality in this context. Thirdly, the court examined whether a macro in one program was an "adaptation" of a macro with the same functionality in another program, and the meaning of "version" in the Copyright Act 1968 (Cth). Finally, the court considered whether a computer data table used for data compression was an "original literary work" and whether a process designed to replicate such a table by examining its output constituted a "reproduction" of the table.
The High Court, in its reasoning, drew upon established principles regarding copyright in computer programs, particularly the definition of a "computer program" as a "set of instructions". The court affirmed that a computer program refers to the entire set of instructions that cause a computer to perform a function, rather than individual commands or words that act as triggers for those instructions. The court held that individual commands, even if they bear resemblance to English words and have identical functions across different programs, are not themselves computer programs. Furthermore, the court considered the concept of "substantial part" in relation to computer programs, indicating that it involves a qualitative as well as a quantitative assessment. The court also addressed the "Huffman compression table," finding that the process of examining its output to replicate it did not constitute a reproduction of the table itself.
The appeal and the cross-appeal were dismissed with costs.
Orders
Orders of the court
1.
Appeal dismissed with costs.
2.
Special leave to cross-appeal granted; cross-appeal treated as instituted and heard instanter and dismissed with costs.
3.
Costs of appeal and cross-appeal are to be set off.
Background
Background to the litigation
Also involved in the proceedings in this Court is a cross-appeal in which the respondents challenged the finding by the Full Court of the Federal Court that they had infringed the copyright in a data table used by the Dataflex program in compressing data, known as the "Huffman compression table". Special leave has not been granted in respect of this issue, but the parties have argued the issues on the cross-appeal on the basis that the special leave application and the substantive appeal should be heard together.The factual background Data Access owns the copyright in a system of computer programs which is known as "Dataflex". The relationship between a computer and a program is described by Carr and Arnold[4] as follows:"A program is executed by the central processing unit (CPU) of the computer, which is the centre of control for arithmetical and logic operations within the microprocessor. The CPU consists of an arrangement of electronic circuits which are activated by impulses of electric current. A logic gate within the CPU is either turned on or off depending on the presence or absence of such pulses.The presence or absence of pulses of current is represented by binary digits ('bits'). The CPU recognises '1' as indicative of the presence of a pulse, and '0' as indicative of its absence.A computer program is a series of bits, each bit representing the presence or absence of a pulse. The program operates within the CPU as a series of pulses in a prearranged sequence in accordance with the order of bits devised by the computer programmer. Accordingly, the 'instructions' of a computer program represent a series of impulses which operate within the computer to make the machine perform certain predefined functions.Each instruction is held in a memory location within the computer, which has an address, by which the location may be identified. The addresses of the memory locations in which program instructions are to be found are held in the program counter. The CPU locates the address of each instruction of the program, accesses it from the memory location, from where it is reproduced and executed in the instructions register. The program counter may contain a 'jump' instruction, which makes the CPU jump beyond the next instruction in sequential order in the software, to access and execute a subroutine."[4]Carr and Arnold, Computer Software: Legal Protection in the United Kingdom, 2nd ed (1992) at 1-2. In Computer Edge Pty Ltd v Apple Computer Inc[5], Gibbs CJ gave a more detailed account of the general nature of a computer program and how it causes a computer to function. Substantial developments and improvements to computers and computer technology have occurred since the trial of that action in 1983[6]. For example, evidence in that case appears to have shown that the first stages of a construction of the programs in 1977 were handwritten[7], whereas many programs are now written entirely on computer[8]. Nevertheless, much of what was said by Gibbs CJ remains relevant. His Honour said[9]:"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 language than a source code), or successively in both. Sometimes the expression source code seems to be used to include both high level and low level language. In the present case, the source programs were written in an assembly code, comprising four elements, viz. – (a) labels identifying particular parts of the program; (b) mnemonics each consisting of three letters of the alphabet and corresponding to a particular operation expressed in 6502 Assembly Code (the code used); (c) mnemonics identifying the register in the micro-processor and/or the number of instructions in the program to which the operation referred to in (b) related; and (d) comments intended to explain the function of the particular part of the program for the benefit of a human reader of the program. The writing has been destroyed, although it is possible to reconstruct the mnemonics, but not the labels and comments, which were comprised in it.The source code or assembly code cannot be used directly in the computer, and must be converted into an object code, which is 'machine readable', i.e., which can be directly used in the computer. The conversion is effected by a computer, itself properly programmed. The program in object code, the object program, in the first instance consists of a sequence of electrical impulses which are often first stored on a magnetic disc or tape, and which may be stored permanently in a ROM ('read only memory'), a silicon chip which contains thousands of connected electrical circuits. The object code is embodied in the ROM in such a way that when the ROM is installed in the computer and electrical power is applied, there is generated the sequence of electrical impulses which cause the computer to take the action which the program is designed to achieve. The pattern of the circuits in the ROM may possibly be discerned with the aid of an electron microscope but it cannot be seen by the naked eye. Obviously, the electrical impulses themselves cannot be perceived. However the sequence of electrical impulses may be described either in binary notation (using the symbols 0 and 1) or in hexadecimal notation (using the numbers 0-9 and the letters A-F), and it is possible to display the description on the visual display unit of the computer, and to print it out on paper. And, as has been said, it is also possible to reconstruct the mnemonics in the source code. It will have been seen from this account that a program exists successively in source code and in object code, but the object code need not be written out in binary or hexadecimal notation in the process of producing and storing the program."[5](1986) 161 CLR 171 at 178-179.[6]Apple Computer Inc v Computer Edge Pty Ltd (1983) 50 ALR 581.[7](1983) 50 ALR 581 at 587-590.[8]Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 3rd ed (1996) at 442-443.[9](1986) 161 CLR 171 at 178-179.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW AND HAYNE JJ
GAUDRON J
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
HUGH, GUMMOW AND HAYNE JJ,
GAUDRON J
The Full Court came to the opposite conclusion. It said[25]:"Each of the words in the so-called Dataflex language is but a cipher. The underlying program is the set of instructions which directs the computer what to do when that cipher is in fact used, for example by being typed on to the screen. It is not to the point that the cipher bears some resemblance to an ordinary English word. The cipher or command is not an expression of the set of instructions, although it appears in that set of instructions. It is the trigger for the set of instructions to be given effect to by the computer. It may not be inaccurate to describe each of the commands as itself an instruction. It is likewise not necessarily inaccurate to talk of each of those words as representing the set of instructions in the sense that the use of one of them triggers the instructions contained in the computer program to be acted upon. But it is in our view not accurate to refer to each of the words as being an expression of the set of instructions. The set of instructions is expressed in the source code which is the computer program and, at least at a higher level, includes the particular word which is a command. The computer program will also in other forms exist in lower level language, ultimately through to an object code in non-visible form. Each of these representations will fall within the definition of 'computer program'. In each of them, in some language, code or notation, the word said to be part of the computer language will be able to be found.The passage earlier quoted from the judgment of Gaudron J in Autodesk, placing as it does emphasis upon the requirement that it is the set of instructions in their entirety which is the computer program, also points to the conclusion that the individual words of command are not, themselves, computer programs within the definition."[25](1997) 75 FCR 108 at 122.Previous judicial consideration of the term "set of instructions" The passage in Gaudron J's judgment in Autodesk referred to by the Full Court is found in Autodesk Inc v Dyason [No 2][26] ("Autodesk No 2"), where, in discussing the definition of "computer program" in s 10(1) of the Act, her Honour said[27]: "[I]t is, in my view, clear that that expression directs attention to an entire instruction or, more accurately, an entire set of instructions, and not merely those parts that consist of bare commands. So much is confirmed by the language used in the definition and by its context. The words 'set of instructions' necessarily direct attention to instructions in their entirety. And that direction is in no way cut down, but, rather, is reinforced by the parenthetical description of the instructions involved as instructions 'whether with or without related information'. Moreover, the definition is concerned with instructions which 'cause a device having digital information processing capabilities to perform a particular function' and in many cases it will be necessary for instructions to be accompanied by related information if those devices are to perform quite ordinary computer functions."[26](1993) 176 CLR 300.[27](1993) 176 CLR 300 at 329.