In addition to the proposed changes of the Copyright Amendment (Digital Agenda) Bill 1999, there have been two recent developments regarding the scope of protection granted to the owners of copyright in computer programs in Australia.
The first development is the decision of the High Court in Data Access Corporation v Powerflex Services Pty Ltd. The second is the proclamation of the Copyright Amendment (Computer Programs) Act 1999 on 30 September 1999.
Data Access Corporation V Powerflex Services Pty Ltd
Data Access appealed to the High Court against orders of the Full Federal Court which were based on a holding that copyright did not subsist in commands in the Dataflex program (reserved words) developed by Data Access. The Full Court reversed the judgment of the trial judge and held that the commands were not "computer programs" under the Copyright Act 1968 (C'th). Also before the High Court was a cross-appeal by Powerflex on the finding of the Full Federal Court that Powerflex had infringed copyright in the data table used by the Dataflex program to compress data.
There were three grounds of infringement in issue before the High Court:
- Reserved words: Data Access alleged that the PFXPlus program developed by Powerflex contained a substantial number of the reserved words used in the Dataflex program. Data Access alleged that each of these reserved words, or alternatively, a collocation of the reserved words, was a "computer program" within the meaning of the Copyright Act 1968.
- Macros: Data Access alleged that PFXPlus utilised macros with the same commands and functionality as the macros in the Dataflex program, and that consequently Powerflex infringed its copyright in the macros.
- Dataflex Huffman compression table: Data Access finally alleged that the table utilised in the PFXPlus program to compress data was a reproduction of the Huffman data compression table used by Data Access in the Dataflex program, and therefore an infringement of copyright.
Decision of the High Court
The High Court held:
Regarding the reserved words:
The reserved words were not "computer programs" within the meaning of the Copyright Act 1968. The court noted that a computer program must directly or indirectly express an algorithmic or logical relationship between the function desired to be performed and the physical capabilities of the device. Each reserved word considered alone did not do this. Further, the collocation of reserved words was not a "computer program".
The court also held that even if the entire Dataflex program was considered a "literary work", reproduction of the reserved words by Powerflex did not constitute a reproduction of a substantial part of the work. Although the reserved words appear in the source code of the Dataflex system, the reserved words were irrelevant to the structure, choice of commands and combination of sequencing of commands in the source code, and therefore were not a substantial part of the Dataflex program.
Finally, the court held that the reserved words were not protected as literary works by virtue of the fact that the reserved words appeared in the User's Guide to the Dataflex program.
Regarding the macros
The words assigned to the macros could not constitute a computer program, whereas the source code underlying each macro could. However, the court found that Powerflex had not reproduced or adapted the source code appearing in the Dataflex macros. Although the functionality of the Dataflex macro source code was copied, that functionality was expressed in original source code in the PFXPlus program.
Regarding the compression table
The court held that the Dataflex compression table was protectable as an original literary work, and was reproduced by Powerflex in the PFXPlus program.
Therefore, the High Court dismissed the appeal by Data Access and the cross-appeal by Powerflex.
Copyright Amendment (Computer Programs) Act 1999
The Copyright Amendment (Computer Programs) Act 1999 ("Act") came into force on 30 September 1999. The Act implements a number of amendments to the Copyright Act 1968 in recognition of the Federal Government's commitment to the development of the information economy in Australia.
The Act is intended to promote open systems or "interoperability" of computer programs and products, and facilitate error-correction and more effective security of computer systems. In particular, the Act describes a number of acts which will not constitute infringement of copyright in computer programs, the effect of which is summarised as follows:
Reproduction for normal use or study of computer programs
This amendment is intended to confirm that, where the conditions of purchase of a computer program do not specifically provide, the technical generation of a copy of the program in the course of running it for normal use will not infringe copyright in the program. In addition, the generation of such a copy while running the program in the course of studying its operation will not infringe copyright.
Back-up copying of computer programs
This amendment provides for the making of a reproduction of a computer program if the reproduction is made for the purposes of:
- use of the new copy as a working copy so that the original copy can be stored;
- retention of the new copy as a back-up copy while the original is continued in use as a working copy; and
- replacing either the original or the previously-made other copy in the event that either of those copies is lost, destroyed or rendered unusable.
Reproducing computer programs to make interoperable products
This amendment allows reproduction or adaptation of a computer program, without infringing copyright, to the extent reasonably necessary to find out how the program interoperates with other programs (ie interface specifications), so that the person reproducing or adapting the program can make a new program or other computer product, to connect with the original program.
To come within this exception to infringement:
- the process resulting in the reproduction or adaptation of the program must be carried out by or on behalf of the owner or licensee of the copy used for making the reproduction or adaptation;
- the new program for which the obtaining of the interface specifications has been sought must be an independently created program and must not reproduce the original program beyond the extent of its interfaces with other programs; and
- the interface specifications must not be readily available to the owner or licensee when carrying out the process resulting in the reproduction or adaptation of the program.
Reproducing computer programs to correct errors
This amendment allows reproduction or adaptation of a computer program, without infringing copyright, to the extent reasonably necessary to correct an error in the copy reproduced or adapted.
To come within this exception to infringement:
- the process resulting in the reproduction or adaptation of the program must be carried out by or on behalf of the owner or licensee of the copy being repaired;
- the error which the process is employed to correct must be one that prevents the copy from operating as intended by the producer of the program or in accordance with any specifications supplied with the copy; and
- an error-free copy of the program is not available to the owner or licensee of the copy within a reasonable time at an ordinary commercial price.
Reproducing computer programs for security testing
This amendment allows reproduction or adaptation of a computer program, without infringing copyright, to the extent reasonably necessary to test the security of the copy reproduced or adapted or of a computer system or network of which the copy is a part. The exception to infringement allows the reproduction or adaptation for the purpose of investigating or correcting a security flaw in, or the vulnerability to unauthorised access of, the copy or system or network.
The decision in Data Access is of particular relevance to Australian software developers. The decision confirms that Australian courts are more likely to find that a technical infringement of copyright has not occurred where a developer independently creates a new program which is functionally equivalent to an existing program. However, developers still need to tread extremely carefully when producing programs which are compatible with existing programs, particularly where the new program incorporates a table or compilation of data utilised in the existing program.
The principal amendments set out in the Copyright Amendment (Computer Programs) Act 1999 allow access to source code for computer programs (by permitting decompilation or disassembly of the programs) in prescribed circumstances. This is seen to benefit the creators of add-on products to computer programs and software maintenance and repair technicians. The would-be creator, or any other person seeking to invoke the provisions of the Act, should be careful to determine, with expert advice as necessary, whether and to what extent they can decompile a program in order to do any of the acts permitted by the Act. An initial approach to the software vendor by the person seeking to invoke the provisions of the Act would in most cases be recommended.
This article provides a summary only of the subject matter covered, without the assumption of a duty of care by Freehill Hollingdale & Page. The summary is not intended to be nor should be relied on as a substitute for legal or other professional advice.
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