Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171 Apple Computer Inc (Apple)

sought an injunction against Computer Edge Pty Ltd from importing and selling Wombat microcomputers on the basis that they violated their copyright on Apple operating system programs, specifically, Applesoft and Autostart.1 The case was first brought to the Federal Court of Australia in 1983 where it was decided by Justice Beaumont that the programs involved were not covered by the Copyright Act 1968 as they did not fall under the category of literary works. The decision was overturned by the full federal court with 2 of the 3 judges of the opinion that the programs source code were original literary works and the adaptation of this into object code by Wombat computers was an infringement of Apples copyright. Upon another appeal to the High Court, the decision was reversed once more. In order to create a computer program, plans in ordinary language would first need to be made. Next, such instructions would be expressed in computer language, either in source code or assembly code. Before use by a machine, the source code needs to be converted to object code. Object code consists of a sequence of electrical pulses either stored in a magnetic disk or tape or silicon chips.2 The core issues of this case include whether or not source code and object code were covered under the original, unamended Copyright Act as literary works.3 Then, if source code or object code can be adaptations or reproductions of other source code. The judges of the High Court were unanimous in finding source programs to be original literary works. In reaching this conclusion, Justice Gibbs quoted a judge from an earlier case

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Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171, 1 Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171, 3, Gibbs C.J. 3 Paul Latimer Australian Business Law (CCH Australia, 30th ed, 2011, 156)

Hollinrake v Truswell (1894) 3 CH 420 who remarked a literary work is intended to afford either information and instruction, or pleasure, in the form of literary enjoyment.4 This definition applies to source programs as they act as instruction(s) to the operator keying in the machine that will convert the source code to object code.5 However, object programs did not satisfy the criteria of being literary works. Justice Gibbs remarks that describing electrical impulses in a silicon chip, which cannot be perceived by the senses and are not intended to convey any message to a human being and which do not represent words, letters, figures or symbols as a literary work was a complete distortion of meaning.6 In determining whether object programs were adaptations of their corresponding source programs, the Copyright Act 1968 (Cth) was used to provide a legal definition. The relevant meaning of an adaptation to this case was deemed to be a translation of the (original) work.7 By referring to the Shorter Oxford Dictionary and interpreting s10 (1) of the Copyright Act 1968 (Cth) as a whole, the primary meaning of translation was deemed to be the action or process of turning one language to another.8 According to Justice Gibbs reasoning, the electrical charges in the ROMS effectuate, but do not translate the instructions in the source program.9 As such, the object programs on Wombat microcomputers were not adaptations of Apples source programs. Nor were object programs considered to be reproductions of source programs. In order to satisfy the notion of reproduction, two elements must be met. Firstly, there must be
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Hollinrake v Truswell (1894) 3 Ch 420, p428, Davey L.J. Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171 , 6, Gibbs C.J. 6 Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171, 7, Gibbs C.J. 7 Copyright Act 1968 (Cth) s10 (1) 8 Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171 , 7, Gibbs C.J. 9 Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171 , 7, Gibbs C.J.

sufficient resemblance between the two works. Secondly, the infringing work must be produced by the use of the copyright work.10 Although the second element was found to be sufficiently met, the judges did not find any objective similarity between the ROMs storing the object code and the written source code, thus failing the first criteria. Reinforcing their opinion was a precedent from Cuisenaire v Reed (1963) VR 719 that a work manufactured from written instructions is not a reproduction of said instructions.11 Together, these findings led to the conclusion that under the unamended Copyright Act 1968 (Cth), the object programs on Wombat microcomputers did not infringe Apples copyright of Applesoft and Autostart source programs. Even though Apples programs in source form were copyright protected as literary works, the object code on Wombat microcomputers ROMs were neither adaptations nor reproductions of the afore mentioned programs. The case held in the high court did not have a large impact on the area of copyright law because the Copyright Amendment Act 1984 (Cth) was passed two years prior and extended the coverage of literary works to computer programs. Other redefinitions were made for terms such as computer program, infringing copy and adaptions to clear up the ambiguities highlighted by earlier proceedings.12 Those previous proceedings held in the federal court and full federal court were instrumental in bringing about the amendment. The amendment meant that computer programs now had copyright protection, an essential characteristic for the growth of the software industry. Word Count: 798

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Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171 , 8, Gibbs C.J. Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171 , 8, Gibbs C.J. 12 Explanatory Memorandum, Copyright Amendment Act 1984 (Cth) 3, [6]

Bibliography Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171 Hollinrake v Truswell (1894) 3 Ch 420 Copyright Act 1968 (Cth) s10 (1) Paul Latimer Australian Business Law (CCH Australia, 30th ed, 2011, 153-156) Explanatory Memorandum, Copyright Amendment Act 1984 (Cth)