Us Company Has Big Win On Copyright
Sydney Morning Herald
Tuesday March 19, 1996
ALTHOUGH it takes creativity to write a good software program, it is still a curious fact that, in Australia, computer programmers are put in the same category as poets and novelists to protect their work from copyright thieves.
In a landmark decision in the Federal Court on February 9, the US company Data Access Corporation won a ruling against the local company Powerflex under a 12-year-old amendment to the Copyright Act 1968 that confers protection to computer programs as literary works.
"As far as we know this is a world first," Data Access co-president Cory Casanave said on a visit to Australia last week. "This is the first time the language has been tested in the world."
DAC is one of the biggest database programmers in the world, with 350,000 licences for its Dataflex application development system. Australian users include Telstra, Qantas, Kodak, BP Australia, Visa and Carlton & United Breweries.
Justice Jenkinson upheld DAC's claim against David Bennett and others, the developers and distributors of software applications Powerflex and PFXplus, that the Dataflex language, a fourth-generation programming language, was protected under the act.
Dataflex is an application development system with the tools to enable software developers to build customised database applications and databases.
PFXplus was marketed to developers as being compatible with Dataflex utilities and indexes and able to compile and run applications written using Dataflex, thus eliminating the need to pay for Dataflex runtime licences.
The crux of DAC's litigation was that language in Dataflex 2.3b comprised 225 words, of which 29 were express commands for developing graphics, and that 192 of the words were in version 2.10 of the PFXplus language.
Justice Jenkinson found that the 192 words that were identical in both Dataflex and PFXplus languages, when in source code, contributed to a device having digital information procession capability to perform the same function.
The court also found that David Bennett had infringed copyright by adapting a group of Dataflex macro commands, a set of file-structure instructions and a Huffman compression table.
It found there was no copyright infringement of Dataflex's error text table because it was not an expression of an idea.
Under the act, the expression of an idea rather than the idea is protected.
Katarina Klaric of Stephens, the lawyers representing DAC, said the case was an important decision for technological industry.
The copyright amendment was enacted in 1984 after Apple Computer Australia lost its case in 1983 against a Taiwanese clone manufacturer, bringing it into line with the Berne Convention, which protects computer programs as literary works.
Australia is a signatory to both the Berne Convention and the Agreement on TradeRelated Aspects of Intellectual Property (TRIPS), which requires member states to protect computer programs "whether in source or object code ... as literary works under the Berne Convention".
Mr Casanave, in Australia to chair the Object Management Group, an international standards-setting body for object-oriented computing in information technology, said he was unaware of any other successful action in the world in terms of the convention.
A date is to be set for the court to determine orders and damages.
© 1996 Sydney Morning Herald