COPYRIGHT IN COMPUTER SOFTWARE

The recently decided case of

Judgment delivered in Melbourne, Australia on June 4, 1997

This case is a recent landmark decision of the Federal Court of Australia of interest to lawyers involved in the law of intellectual property. It is of probably even greater interest to developers of computer software looking for guidelines on where to draw the line between legitimate competition and plagiarism.

Data Access Corporation, a U.S. company, owns Dataflex which is an application development program for use in the development of customised database applications. Powerflex Corporation Pty Ltd., an Australian company, created a competing product PFXplus which used the same commands, file structure and function keys to perform the same functions as Dataflex in an endeavour to provide users with a superior program and thus attract them from Dataflex to PFXplus.

PFXplus was created by a process of reverse engineering and study of the operation and documentation of Dataflex with the intention of achieving complete compatibility. Although the source code of the two programs is totally different, the user interface comprised in the commands, file structure and function keys is the same or at least very similar.

Dataflex uses commands and "reserved words" and these, or most of them, are also used in PFXplus so as to achieve compatibility ensuring that the operation of the two programs is substantially the same. Data Access claimed copyright in respect of the reserved words and it was common ground between the parties that these words have the same meaning and syntax in the languages of both Dataflex and PFXplus. Data Access commenced proceedings in Australia against Powerflex and its proprietors, including the author of PFXplus, for injunctive relief seeking to restrain the reproduction and distribution of PFXplus and also damages on the grounds that the copyright of Data Access had been infringed in breach of section 10 of the Australian Copyright Act 1968.

The original judgment in the case was delivered by Jenkinson J in the Federal Court of Australia in February, 1996 and PFXplus was found to infringe the copyright of Data Access. The injunction sought was granted against Powerflex but its operation was stayed pending an appeal against the decision by Powerflex.

The appeal by Powerflex was heard in Melbourne in October, 1996 by three judges of the Federal Court of Australia. On June 4, 1997 the court handed down its decision upholding the appeal and setting aside the judgment of the court below. The court, constituted by Black CJ, Hill J and Sundberg J, unanimously held that commands for use in a computer program do not themselves constitute a "computer program" within the meaning of section 10 of the Australian Copyright Act 1968 so that use of such commands in another program is not an infringement of the copyright of the first program.

Accordingly, by use of the "reserved words", the commands, file structure and function keys of Dataflex in PFXplus, Powerflex has not infringed the copyright of Data Access. It follows - and this is consistent with the common law principle that while the particular form in which ideas are expressed can be the subject of copyright, the ideas themselves cannot - that software developers who wish to maximise the compatibility of their product with that of a competitor may copy the ideas underlying the software of a competitor. However, they must take care not to copy the particular expression of those ideas as adopted by the first software developer because to do so will infringe his copyright.

The difficulties inherent in making this distinction have not escaped the judges who heard this case. Their judgment deals extensively with what is a computer program capable of receiving the benefit of copyright protection and the distinctions between what is and is not copyright material in computer programs. It gives an overview of the Australian law in this field and the corresponding law in the United States, both the statute law and the leading cases.

It is an important and comprehensive statement of the limits of the protection that authors of original software can expect from the law of copyright. Viewed in the context of a huge active market in computer programs where the dictates of competition and free trade may appear to be in conflict with the protection of the rights of the authors of original works, the judgment is a significant step forward in our understanding of where to draw the line between legitimate competition through compatibility by design and the prohibited act of plagiarism of the copyright work of another.

 Read the entire judgment of the appeal court

 Read the entire judgment of the lower court

Links to commentaries:

 Issues in the Powerflex Case - a commentary by John Sinisgalli, June 1997

New Cases

 Coogi Australia Pty. Ltd. v Hysport International Pty. Ltd. - a brief commentary by John Sinisgalli.

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