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The Rights granted by Copyright Law for Computer software

Computer software is protected as a literary work under the Copyright Act 1968 (Cth) (‘the Act’). A literary work includes: a table, or compilation expressed in words, figures or symbols; and a computer program or compilation of computer programs.

In order to attract copyright protection, the work must be a “computer program”.  A computer program under the Act means a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. A set of reserved words, although being a set of instructions, is not a computer program unless it causes a computer to perform a particular function. It is necessary therefore to identify the “set of instructions” with some precision as a computer program is more than an “idea”. In Data Access Corporation v Powerflex Services Pty Ltd (1999) HCA 9, the court observed that: The “expression” of a computer program is “the selection, ordering, combination and arrangement of instructions within a computer program…”

Copyright is about protecting another person’s labour, skill and expertise in an original work where the creation of a computer program is a product of human intellectual endeavour. As the court noted  in the Data Access case, the skill of a computer programmer lies in the ability to express in a computer language an algorithmic relationship between the function which is to be performed and the physical capabilities of a computer.

Accordingly, the protection conferred on computer programs by the Act is intended to protect the expression of the computer programmer’s skill (by another copying or translating the code) and not the idea of function underlying the code.

The Rights granted by Patent Law for Computer Software

Software patents and business method patents are generally patentable in Australia subject to certain restrictions. The starting point for a computer implemented business method is that it is not prima facie patentable. However, the fact that an invention is a business method or scheme does not exclude the invention from patentability but rather that it still requires more than that to qualify for patentability.

The court considered in Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177 at 96 that an invention must go beyond being an abstract idea so that it constitutes an improvement in computer technology and the “creation of an artificial state of affairs” so that the computer is integral to the invention. You cannot dress up a business method as a patentable invention by putting it into a computer because the invention lies in the computerisation and not in the business method.

In making that assessment, there is no precise test as, in each case, an examination of the invention must be made to work out whether there is a patentable invention “as a matter of substance”. The court stated that although there are no precise guidelines, there are matters set out in Research Affiliates LLC v Commissioner of Patents [2013] FCA 71 that can be considered:

  • whether the contribution to the claimed invention is technical in nature;
  • whether the invention solves a “technical problem” within or outside the computer or whether it results in an improvement in the functioning of the computer (apart from the data being processed);
  • whether the claimed method merely requires generic computer implementation; and
  • whether the computer is merely an intermediary to carry out the business method but adds nothing of substance to the idea.

The test for patentable subject-matter is the same as for any other invention in that an invention is patentable if it provides something that is industrially useful or an “artificially-created state of affairs”. The second level inquiry for the patentability of computer programs is subject to the usual criterions of novelty, inventive step and utility.

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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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