COMPONENTS OF A COMPUTER PROGRAM ARE INDIVIDUALLY PROTECTED BY COPYRIGHT

JONATHAN TEH SOLICITOR
CHIARA CAPUTO SEASONAL CLERK

INTRODUCTION
 

The Copyright Act 1968 (Cth) (“Copyright Act”) allows copyright owners of computer programs to prevent others from using, copying, modifying or adapting their programs without permission.  Does this extend to individual scripts or components within a computer program?

In Dais Studio Pty Ltd v Bullet Creative Pty Ltd,[1] this question arose in a copyright infringement dispute over two JavaScript files, which formed part of an online content management system. The case confirms that the definition of “computer program” allows each script or component within a computer program to be protected as a separate copyright work.  This enables copyright owners to prevent others from using, copying, modifying or adapting their programs without  permission.

What happened in Dais?
 

Dais Studio Pty Ltd (“Dais”) was the developer of a content management system for websites called “WebStable”.  The server component of WebStable produced interactive webpages, which were accessed using an internet browser.  These webpages required the user’s internet browser to load small JavaScripts files, which allowed the user to manipulate content and send commands to the WebStable server.

Some time after Mr Petro finished working for Dais, Mr Petro allegedly copied two publicly-accessible JavaScript files (a “table file” and “editor file”) from the website of a Dais client which used WebStable.

Dais tried to prevent Mr Petro from making use of these files by claiming that Mr Petro: 
 

• infringed Dais’ copyright in either WebStable, or each of the table file and editor file as separate copyright works;
   
• breached an equitable duty of confidence not to use the table file or editor file without Dais’ consent; and
   
• breached the confidentiality obligations in his employment contract with Dais. 

Despite the court finding that each JavaScript file, by itself, was a separate copyright work, there was no evidence that Mr Petro had downloaded a copy of the files which he allegedly copied.  There was also insufficient evidence to prove that Mr Petro had worked on WebStable while employed by Dais.  As a consequence, the claims of breach of confidentiality also failed.

What does this case mean for you?

Copyright in components of computer programs

Section 10 of the Copyright Act defines “computer program” to mean a “set of statements or instructions to be used directly or indirectly to bring about a certain result”.  A small file which adds functionality to a program might bring about a result, even if it is only used in conjunction with other processes which together bring about a result.

In Dais, the table file and editor file were separate computer programs because:  

• they were discrete manageable entities, which each added functionality to produce a definable result; and
   
• the instructions on each file were related by function, and so constituted a set of instructions. 

This means that developers and IT users are at risk of infringing copyright where only a component of a larger computer program is used or copied.  That component, even if it is an insubstantial component compared to the whole of the computer program, may be protected as a copyright work.

You should bear in mind that copyright protects the form of expression, but does not protect any ideas in a computer program.  Thus, copyright is less likely to protect the behaviour and “look and feel” of a program.

 
Reproduction of predecessor or successor versions of a computer program

In order to prove that a work has been reproduced, it is necessary to prove either actual copying, indirect copying (eg copying a copy of the work) or subconscious copying.  However, it is not sufficient to prove that a person copied a successor or derivative version of the copyright work.

In Dais, there was insufficient evidence to establish the identity of the WebStable product, as various client-customised versions of WebStable were in a process of continuous development.  As a result, Dais had to claim that a specific version of WebStable produced for one client, had been infringed.  The court was not provided with any evidence (eg records of internet downloads) that Mr Petro had actually copied that specific version (as opposed to versions for Dais’ other clients), hence Dais’ claim failed.

This means that recording the development history of an individual component becomes important for the purpose of making or defending copyright claims.  By using master software repositories and version control, there will be records that better enable you to claim that copyright in a specific version of a file has been infringed. 

Reproduction of a ‘substantial part’ of a computer program

A claim for copyright infringement requires reproduction of a “substantial part” of the work.  For computer programs, substantiality is resolved with reference to the originality of the part taken compared to the whole program.  It is also relevant to consider the quantitative contribution (eg line counts).

In Dais, the primary claim was that WebStable had been infringed because the table and editor file were a “substantial” part of WebStable.  This would have enabled Dais to claim more damages compared to infringement of individual files.

The court found that the table file and editor file did not form a substantial part of the overall originality of WebStable because Dais did not provide any evidence of this.  The fact that the files were an integral part of WebStable by reference to their function did not demonstrate originality.  Further, based on a line count, the files were not a substantial part of WebStable (on one measure, they constituted less than 1%).

Protecting confidential information given to employees

This case also reminds us that confidentiality obligations may be effectively used to protect copyright works in relation to employees.  Confidentiality deeds, if carefully drafted and regularly reviewed, can provide a further basis for preventing unauthorised reproductions of an employer’s computer programs.

In this case, Dais failed to show that there had been a breach of Mr Petro’s employment contract.  The contract did not specify what types of information were to be treated as confidential.  As a result, the court took a narrow view of “confidential information” that excluded the table and editor files.

In some circumstances, even if no agreements have been signed, the courts can prevent the disclosure of confidential information.  This applies if the information is not common or public knowledge and the information is appropriately protected.  Unfortunately, in light of Dais’ internal practices, Dais could not prove that it took appropriate steps to protect the script files in WebStable.

Conclusion

This case serves as a reminder that developers and IT users are at risk of infringing copyright even if only a small component of a larger computer program is used or copied without permission.

We encourage you to review your existing employment contracts to ensure that you have appropriate protection for any computer programs in which your organisation owns the copyright.  We also encourage you to review your organisation’s requirements regarding software development processes in order to minimise the risk of infringing copyright in other computer programs.