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Copyright Infringement in a Computer Program

Computer programs are protected as a literary work under the Copyright Act 1968 (Cth). A “computer program” is defined as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

The High Court in Data Access v Powerflex (1999) in examining the definition of a “computer program” under the Copyright Act, noted that:

“A [computer program] must be an expression of a set of instructions which is intended to cause a computer to perform a particular function…a program in object code causes a device to perform a particular function ‘directly’ when executed. A program in source code does so after conversion to another language, code or notation.”

Following Powerflex, it is now recognised in Australia that copyright protects the underlying code of a computer program, but not the structure, commands or user interface.

‘Look and Feel’ of a Computer Program

The case law in Australia on the question of “look and feel” of a computer program has yet to be clearly elucidated. The most significant legal developments on this question have occurred overseas.

In Navitaire Inc. v EasyJet Airline Company and Bulletproof Technologies Inc. [2004], the English High Court considered whether the ‘look and feel’ of a web-based interface for purchasing airline tickets could be protected by copyright. The action concerned the copying of screen displays and reports from the software, the copying of the individual commands of the software and the copying of the look and feel of the software.

The court held that where a computer program performs substantially the same functions as another computer program, but has not copied its source code, it will not infringe the copyright in that other computer program as a literary work.

In SAS Institute Inc. v Word Programming Ltd the Court of Justice of the European Union (“CJEU”) considered a similar issue to that raised in Navitaire. The Court held that a person does not infringe the copyright in software by replicating its ‘look and feel’, provided the underlying source code of the software has not been copied. The decision in SAS Institute confirms the English High Court’s decision in Navitaire.

In Lotus Development Corporation v Borland International Inc. (1995), the US Court of Appeals had to consider whether a set of commands in a spreadsheet program was protected under copyright. The Court of Appeal held that, “a set of commands in a hierarchy is not protected under the law of copyright”. The decision was largely based on the finding that a menu command structure was a “method of operation” for a computer program, rather than an expression of a program’s method of operation.

What is evident is that the case law to date, both in Australia and in overseas jurisdictions is that copyright protects the underlying code in a computer program, but not the ‘look and feel’ or design elements of a computer program.

Substantial Copying

The copyright in a computer program is not infringed unless the underlying code is a substantial reproduction of another computer code. Copyright is about the quality rather than the quantity of what is taken. It is the essential or material features of a work that should be ascertained. Determining what is substantial will depend on whether it is a substantial, vital and essential part of the original work.

In SW Hart v Edwards Hot Water Systems (1985), Wilson J stated:

“… the question whether there has been a reproduction is a question of fact and degree depending on the circumstances of each case. The emphasis upon quality rather than quantity directs attention to the significance of what is taken.”

Therefore, it is entirely possible to have two similar computer programs that perform the exact same function without one infringing the copyright of the other.

Svethlana Milanes, ABComm

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Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.

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