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
Petro later left Dais to work for Bullet. He took with him 2
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
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
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
So, in some cases, a computer program's bark might
be a lot bigger than its bytes.
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This case set a new benchmark in Australia for future patent infringement damages claims against generic manufacturers.
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