Does Size Count? Protecting Computer Programs Under The Copyright Act

The computer world often wonders whether size counts when it comes to copyright protection. The Federal Court's decision in Dais Studio v Bullet Creative confirms that for creators of computer programs, size doesn't matter.

Dais Studio v Bullet Creative

Petro had been an employee of Dais Studio during which time Dais developed its own specialised content management system (CMS).

Petro later left Dais to work for Bullet. He took with him 2 JavaScript files which were part of Dais' CMS and used them to design internet pages for Bullet's client. According to expert evidence, the relevant files represented less than 1% of the entire CMS.

Dais sued Bullet alleging infringement of copyright in the reproduction of the individual files or alternatively, infringement of copyright in the CMS as a whole. Although Dais' copyright claim failed (for evidentiary reasons), interesting questions were raised as to the qualitative and quantitative assessment of the relevant computer programs in the context of the Copyright Act 1968 (the Act)..

Were the small 'computer programs' worthy of copyright protection?

The basic function of the files was to send commands to a browser's software and edit the interface of a website. They could not in fact perform that function alone or operate independently from the CMS.

Despite being extremely small and somewhat useless by themselves, the Court found that the files nonetheless, were a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result and were therefore, "computer programs" under the Act. Computer programs, no matter how small, are protected by copyright.

Alternatively, did the copying of the files infringe a substantial part of the CMS as a whole?

Dais also argued that the copying of the files infringed copyright in the CMS program as a whole. To succeed with such an argument the Court needed to be satisfied that the 2 files were a "substantial" part of the CMS.

The key issue was the quality of the small files rather than their quantity or size. This involved looking at the degree of skill, labour, judgment and expense involved in the creation of the files.

Dais failed in this part of the claim because it did not present sufficient evidence.

So what does this mean for the computer world?

Potentially, any piece of computer code can constitute a "computer program" as defined by the Copyright Act and therefore be protected on its own. Furthermore, a very small part of a larger program can be protected on the basis that it is a "substantial" part of the program, depending on its relative importance and what went into creating it.

So, in some cases, a computer program's bark might be a lot bigger than its bytes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.