Data Access Corporation v Powerflex Services Pty Ltd - [1996] FCA 38

CATCHWORDS

Intellectual Property - Copyright - Nature and subject matter of copyright - Computer programs - Words of a computer language copied, source code expression of the meanings of the words not copied, computer functions performed under the instructions expressed by the words identical - Infringement of copyright in the computer programs constituted.

Copyright Act 1968 ss 10(1), 14(1)

Autodesk Inc. v. Dyason (1992) 173 C.L.R. 330
Autodesk Inc. v. Dyason [No. 2] (1995) 176 C.L.R. 300
Lotus Development Corporation v. Paperback Software International (1990) 18 I.P.R. 1
Lotus Development Corporation v. Borland International Inc. 49F. 3rd. 807 (1st Circ. 1995)

DATA ACCESS CORPORATION v. POWERFLEX SERVICES PTY. LTD., POWERFLEX CORPORATION PTY. LTD., DAVID MEREDITH BENNETT, MARGARET ANN BENNETT and DEMILEIGH PTY. LIMITED

No. VG473 of 1993

Jenkinson J.
Melbourne
9 February, 1996

IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG473 of 1993
GENERAL DIVISION )

BETWEEN:DATA ACCESS CORPORATION

Applicant

AND: POWERFLEX SERVICES PTY. LTD.
First Respondent

AND:POWERFLEX CORPORATION PTY. LTD.

Second Respondent

AND:DAVID MEREDITH BENNETT

Third Respondent

AND:MARGARET ANN BENNETT

Fourth Respondent

AND:DEMILEIGH PTY. LIMITED

Fifth Respondent

CORAM: Jenkinson J.

PLACE: Melbourne

DATE: 9 February, 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

Further consideration of the proceeding be adjourned to a date to be fixed.

(Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules)

IN THE FEDERAL COURT OF AUSTRALIA   )
VICTORIA DISTRICT REGISTRY         ) No. VG473 of 1993
GENERAL DIVISION                   )

BETWEEN: DATA ACCESS CORPORATION
Applicant

AND:POWERFLEX SERVICES PTY.LTD.
First Respondent

AND: POWERFLEX CORPORATION PTY. LTD.

Second Respondent

AND:DAVID MEREDITH BENNETT

Third Respondent

AND:MARGARET ANN BENNETT

Fourth Respondent

AND:DEMILEIGH PTY. LIMITED

Fifth Respondent

CORAM: Jenkinson J.

PLACE: Melbourne

DATE: 9 February. 1996

REASONS FOR JUDGMENT

Trial of questions arising in a proceeding for infringement of copyright in computer programs.

The applicant Data Access Corporation ("Data Access") is a company incorporated under the law of the State of Florida in the United States of America. Data Access claims to be the owner of copyright alleged to be subsisting
in computer programs first published in that country. The provisions of the Copyright Act 1968 (Cth) having been applied to those "literary works" by s.184 of that Act and Regulation 4 of the Copyright (International Protection) Regulations, acts done by the respondents in this country are alleged to have constituted infringements.

A director of Data Access, Cory Casanave, and others of its employees, developed the works in and after 1979. First publication of any of the works occurred in 1981. Before this proceeding commenced, on 5 November 1993, eighteen revisions of the works had been published, many of them including additional works. The name of the works is DataFlex. They are compendiously described as an application development system. In the usage of the computer industry the word "application" in the context of that phrase signifies the compilation of a set of…

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

Case: [1996] FCA 38
Decision Date: 9 FEBRUARY 1996

CaseChat Overview and Summary

This case involved a claim by Data Access Corporation, an American company, against Powerflex Services Pty Ltd, Powerflex Corporation Pty Ltd, David Meredith Bennett, Margaret Ann Bennett, and Demileigh Pty Limited, all Australian entities, for copyright infringement in relation to computer programs. The applicant, Data Access Corporation, claimed that the respondents had infringed its copyright in the computer programs DataFlex by developing and selling the Powerflex and PFXplus application development systems. The court had to determine whether the respondents had infringed the applicant's copyright in the computer programs, and if so, what relief should be granted. The court found that the respondents had indeed infringed the applicant's copyright in several aspects of the computer programs. The court found that the respondents had copied many of the words of the DataFlex language and used them in the PFXplus language, which constituted an infringement of copyright. The court also found that the respondents had copied the DataFlex error text table, Huffman Compression Table, and file structure, which were also protected by copyright. The court rejected the respondents' defences of implied licence, laches, and estoppel, and found that the applicant's delay in bringing the proceeding was not inordinate or inexcusable. The court did not find the circumstances to attract the exercise of the discretionary power under s.115(4) of the Copyright Act 1968. The court did not determine the respective liabilities of the individual respondents and adjourned further consideration of the proceeding to a date to be fixed.

Orders