Journal of Law, Information and Science
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Journal of Law, Information and Science |
|
NOTE
MAREE SAINSBURY[*]
The extent of protection provided by the Copyright Act 1968 for the protection of computer software has always been an unsettled question. Initially it was uncertain whether or not a computer program would attract copyright protection at all.[1] When it was decided that it did, this protection was restricted to the source code of the program - that is the instructions expressed in a form close to ordinary language. It did not protect instructions in object code - that is the instructions expressed as a series of electrical impulses that the computer responds to.[2] This matter has been settled by amendments to the Act[3] which make it clear that both the object code and source code are subject to copyright protection. It is now the extent of this protection which gives rise to debate.
The debate arises from the distiction made for the purposes of copyright law between an idea and its expression. Copyright law protects only the expression, not the idea itself. The issue is how far a competitor can go in recreating the idea of a computer program without infringing the copyright in it. Given the highly competitive nature of the computer software market, this is an issue which was always going to be tested.
It has never been in dispute that a competitor can recreate the idea of a computer program without infringing the copyright. This can be done by designing a computer program which does not substantially reproduce or make an adaptation of the original, but which has exactly the same result. In other words, a programmer can tell the computer how to do the same thing, but use a different form of expression. However, to fully recreate computer software, the competitor may have to adopt certain aspects of the original program, for example the file structure, or the words or commands the user utilises to get the program to perform a particular function. How many aspects of a program can a competitor adopt without infringing copyright? This was the issue before the court in the recent decision of the Full Court of the Federal Court in Powerflex Services Pty Ltd v Data Access Corporation.[4]
The facts, as outlined in the judgment, are as follows. The respondent, Data Access, was the owner of the copyright in an application[5] development system, which it had developed. The application development system was designed to enable the purchaser to develop customised database applications and databases[6]. The appellant, Powerflex, had created an application development system which was compatible with the respondents[7]. In doing this they were hoping that customers of the respondent would transfer to their product. They had created their product through a study of the respondents program although the actual source code used for both programs was different.
Data Access alleged infringement of the copyright in six different ways:-
1) infringement of copyright in the development language of the program.
The development language consisted of 225 command words, each of which, when used, caused the program to perform a particular function. Powerflex had used all but 29 of these words as commands to activate an identical function to the function activated by that command word in the Dataflex language. The underlying program used to generate the performance of the function was different.
2) breach of copyright in three particular macros used as part of the program.
The function of the macros was similiar to that of the development language commands, except that they caused the performance of a more complex function. The words used by DataFlex were ‘report’, ‘entergroup’ and ‘enter’. The words used by Powerflex were ‘report.pfa’, ‘entgroup.pfa’ and ‘enter.pfa’. Use of these commands caused the activation of an identical function. Once again, the performance of these functions in the two programs was generated by an entirely different source code.
3) breach of copyright in the compression table used.
A compression table is a tool designed to compress data so that it takes up less room on the computer’s hard drive.[8] Data Access had used a Huffman compression table - the evidence was that Huffman compression is achieved by working out the frequency with which a character appears in a sample data file. Each character is assigned a bit string, the length of this bit being determined by the amount of times that character appears in the program. Characters which are common are asigned a short string. Uncommon characters will be assigned a longer one. To read compressed data from one program in another, you would need to have the exact same string of coding. In both programs, the compression table was identical.
4) breach of copyright in the file structure
The file structures in the two systems were identical and had to be in order for the two programs to be compatible. However once again, the codes of the programs governing the file structure were not objectively similiar.
5) copyright in the function keys
Both programs had assigned certain function keys which, when used, would cause the computer to perform a particular function. Sixteen function keys were assigned. The function keys used to perform certain functions were identical in the two programs - for example, F3 was used to exit. The source codes of the programs used to achieve these functions were not similiar.
6) the error text table
Data Access alleged that Powerflex had breached the copyright in its error text table. The error text table assigned a number to various program or operator errors. When these errors occurred, a text message describing the error would be displayed on the screen. The errors were given a number from one to one hundred. In comparing both programs, the numbers assigned to each error, and the text generated when the error occured, was often similiar, although there were some differences.
Jenkinson J found for Data Access in five out of the six alleged instances of infringement.
In relation to the development language and the three specific macros, it was found that there had been an adaptation. The judge classified each of the commands as forming an individual computer program for the purposes of analysis. The words themselves were not just expressions of an idea, but were expressions which were original and substantial and therefore copyrightable.
In relation to the use of the Compression table, the primary judge found that the copyright had been infringed. Even if both programs had used the Huffman method to compress the data, there were many different ways the table could have been expressed. However, the two tables were identical.
The judge at first instance also found that the copyright in the file structure had been infringed. As the expressions were in a different language, there was no reproduction. But there had been an adaptation. For this, he relied on the Explanatory Memorandum which accompanied the 1984 amendments to the Copyright Act which inserted the definition of adaptation for computer programs. The Memorandum noted that the former definition of adaptation was seen as too restrictive as it may have only covered translations between human languages. The new definition was intended to cover translation between different high level programming languages and object code languages. It was also intended to cover conversion between languages of similar level - where the differences are so substantial that there cannot be reproduction, although one is clearly derived from the other.
It was held that the sixteen words used to describe the function keys were each an expression of a set of instructions which, by pressing the correlative key, caused the computer to perform a particular function. This was despite referring to the High Court decision in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1995) 176 CLR 300, where Gaudron, J at 329-330 observed that the definition of computer program requires a set of instructions, drawing attention to the instructions in their entirety. Jenkinson, J referred to this and went on to state that if he was in error in treating a single word as a ‘set of instructions’ he would be of the opinion that copying of the words constituted an adaptation of a substantial part of the set of instructions.
Infringment of the error text table was rejected on the basis that there was only a limited number of ways of expressing the idea that the words communicated. Where the expression of the idea is inseperable from its function, it is not protected by copyright.
The court overturned the primary judge’s decision on the basis that the subject matter, that is the words of the development language and the three particular macros, was not protected by copyright. The court pointed to the need for an expression of a set of instructions, as required by the definition of computer program in s 10(1) of the Copyright Act 1968.[9] Each of the words individually was viewed as a cipher.[10] It was not a set of instructions, but merely a trigger for the set of instructions to be given effect. This was in accordance with the position in the United States in Lotus Development Corporation v Borland International Inc [1995] USCA11 37; (1995) 33 IPR 233 where it had been held that there was no copyright in a menu command hierarchy, consisting of a combination of single words. Some of the words for which copyright was being sought were ordinary English words.[11] They were not words joined together in any particular order, which may have given rise to copyright protection.
Commenting on the primary judge’s opinion that there had been an adaptation, the court went on to consider the meaning of the word in relation to computer programs. The definition requires that there be a ‘version of the work that is not a reproduction’[12]. In the case at hand, in order to produce the language of the Powerflex program, the Dataflex language had been carefully studied. The court was of the view that the devising of a source code to perform the same function as is performed in some other source code does not involve creating a version of the original source code.
The court recognised that in some instances, a set of instructions within a program may be viewed as a separate program for the purposes of copyright protection. This may effect the determination of whether or not there has been the reproduction of a ‘substantial part’ of the program, as required by the legislation.[13] However, for this to occur, the instructions would need to be functionally separate. Here, the words should not be seen as a separate set of instructions and it was doubtful whether they formed a substantial part of the whole program.
Despite the fact that a computer had been used to help create the compression table, significant human input and skill was still involved. The table was capable of receiving copyright protection, not as a computer program, but as a compilation[14]. Although there had not been direct copying, the court agreed with the primary judge’s finding that there had been a reproduction. The table in the Powerflex program had been recreated by observing the behaviour of the Dataflex system. The fact that it was a small part of the underlying program did not matter as it was classified as a ‘table’ not a program, so it received separate copyright protection.
Once again, the court found no infringement. The court reaffirmed that the fact that one set of instructions brings about the same result as another set of instructions requires neither the conclusion that one is a reproduction nor an adaptation of the other. Even where the subsequent set is written after long study of the first set, it is not necessarily an adaptation of it.
The court found that the function keys did not exist as a separate set of instructions, and therefore should be viewed as a part of the original work. There was no infringement due to fact that there was no objective similarity between the respective source programs.
The court agreed with the findings of the primary judge in relation to infringement of the error text table. As a part of the computer program, it was not a substantial part. As a separate table, there was only a limited number of ways of expressing the idea, so the idea was inseperable from the function and not capable of being the subject of copyright.
Powerflex had argued that there had been an implied licence granted by Data Access for the use of its program. It also alleged that the applicant was precluded from relief by laches and estoppel.
These arguments were based on the fact that there had been some preliminary discussions between the parties concerning the possibility of co-operation in exploiting the market. This did not lead anywhere and Data Access did not choose to take legal action immediately upon becoming aware of Powerflex’s decision to market their product alone.
The court accepted the findings of the primary judge that mere silence could not amount to an implied licence. Nor could it support a defence of estoppel, as their silence was reasonable. Any delay in bringing the proceedings was, likewise, not unreasonable.
A further order was made remitting the issue of personal liability on the part of Dr M Bennett, a director of Powerflex, to a judge of the Court for further directions and hearing.
The Appeal Courts decision is significant in a number of respects;-
1) it overturns the notion of the primary judge that a single word can be a computer program. This is not correct in principle, as the definition requires a ‘set of instructions’. [15] The words in issue were really just labels, designed to trigger a set of instructions, and would have formed a small part of those instructions. However, the court also recognised that in some situations, a part of a computer program could be viewed as a separate set of instructions, and thus a program in its own right.
2) the comments of the court on what will be an adaptation of a computer program do not really clarify the matter. It should be possible to view a later work as an adaptation in some circumstances, when the original work is used as a basis for producing it. It is hard to see why the court could not have interpreted the actions of Powerflex as involving making an adaptation of the Data Access program. If there are reasons for this, they are not apparent from the decision. The words of the Data Access program were studied in detail and then Powerflex set about to achieve an identical result. This is not dissimiliar to the making of a translation, which is an adaptation for the purposes of the Act. It could be compared to translating a set of instructions from one language to another - the effect of the words will be identical to those who understand them, even though there is no similarity between them. What the appellant did seemed to derive an unfair benefit from someone else’s efforts, which is what copyright law is designed to prevent. An interpretation should be given to the provisions of the Act, where possible, to meet this purpose. It would have been different had the appellant not directly used the source code of the respondent’s program to form its own. However this was not the case.
3) the case gives a good discussion of the idea/expression dichotomy as it relates to computer programs. The case of Autodesk Inc v Dyason[16] is analysed, which makes it clear that where there is a similarity in function, but not in the set of instructions causing that function, it is only the idea which has been copied, not the computer program. A method of operation will be an idea separate from its expression. However, in some cases it is difficult to separate an idea from its expression, expecially in the case of a utilitarian work such as a computer program. In these cases, the expression forms part of the idea and is not entitled to the protection of coypright. [17] In Autodesk, it was suggested that the distinction should not be applied too strictly, so that a person reproducing a set of instructions in a different form does not escape liability for infringement. Yet, this seems to be precisely what happened in Poweflex v Data Access.
The decision also give a useful outlines of the history of the protection of computer software in this country. This highlights the fact that the protection of computer software it is a highly dynamic area, and one in which there are many competing interests to be balanced. As is evident, the guidelines are still far from settled. Leave has been sought to appeal the decision of the Full Federal Court to the High Court, but at the time of writing the leave application had not been heard. As a result it is an area in which we are sure to see further developments.
[*] BA/LLB (Hons), Post graduate student, Faculty of Law, University of Tasmania.
[1] See the decision of Beaumont J in the Federal Court in Apple Computer Inc v Computer Edge Pty Ltd (1983) 50 ALR 581.
[2] Apple Computer Inc v Computer Edge Pty Ltd [1947] ArgusLawRp 3; (1984) 53 ALR 225.
[3] Copyright Amendment Act 1984.
[4] [1997] 490 FCA (4 June 1997).
[5] The term application was described by the primary judge as being used in the computer industry to signify the compilation of a set of computer programs to be used to perform a specific task. see Jenkinson J in Data Access Corporation v Powerflex Services Pty Ltd (1996) 33 IPR 194.
[6] A database is a collection of classes of information stored in a computer in an organised manner - per Jenkinson J in Data Access Corporation v Powerflex Services Pty Ltd (1996) 33 IPR 194.
[7] So that databases developed using the Dataflex application system would work with the Powerflex program.
[8] This was the definition accepted by the court in the case at hand.
[9] A computer program is defined as ‘an expression, in any language, code or notation, of a set of instructions (whether with or without related information) intended, either directly or after either or both of the following:
a) conversion to another language, code or notation
b) reproduction in a different material form;
to cause a device having digital information processing capabilities to perform a particular function.
[10] ie a code or command which, when used, activated a set of instructions which directed the computer to perform a certain task.
[11] For a discussion of the circumstance in which copyright may exist in a single word see the decision in Exxon Corporation v Exxon Insurance Consultants International Ltd [1981] 2 All ER 495.
[12] s 10(1)
[13] s 14(1)
[14] A compilation is also classified as a literary work for the purposes of the Copyright Act. s 10(1).
[15] See the criticisms of the decision in Christie, Andrew and Fong, Kenneth, “Copyright Protection for Non-Code Elements of Software’ in Journal of Law and Information Science, vol 7, no 2, 1996, pp 149-168 at p 163.
[16] [1992] HCA 2; (1992) 173 CLR 330; 176 CLR 300.
[17] Autodesk v Dyason (1992) 173 CLR at 344-5.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/JlLawInfoSci/1997/7.html