Apple Computer v. Computer Edge

Citation: Apple Computer, Inc. v. Computer Edge Pty., Ltd., [1983] 50 Austl. L.R. 581, rev’d, [1984] 53 Austl. L.R. 225, rev’d, [1986] F.S.R. 537.

Factual Background
This case involved the importation and marketing of a personal computer under the name “Wombat.” The U.S. firm, Apple Computer, claimed that the Wombat computer included read-only memory (ROM) chips that embodied infringing copies of Apple's operating system programs.

Trial Court Decision
At the trial level, the New South Wales Federal Court concluded that the Apple programs were not literary works within the meaning of the Australian copyright statute. In the trial court's view, the copyright law's definition of literary works was limited to those works intended to afford information, instruction, or pleasure in the form of literary enjoyment. Because, in the court's view, the sole function of a program was to control the sequence of operations carried out by a computer, and not to convey any information to a human being, none of the programs involved in the litigation were literary works within the meaning of the statute.

Appellate Court Decision
The trial court's logic did not persuade the appeals court. Two of the three appellate judges reversed the lower court's decision. Applying the lower court's test, the appeals court stated that a reader may have gotten instruction and information from reading the source codes, which “express meaning as to the arrangement and ordering of instructions for the storage and reproduction of knowledge."

Alternatively, the court concluded that an operating system program might be viewed as a “work which is expressed in printing or writing irrespective of whether it has an excellence of quality or style, literary merit, taste, judgment or ingenuity. It is sufficient if the work supplies information capable of conveying an intelligible meaning and if mental effort and industry is expended in its preparation. . . .”

Thus, the court recognized that computer programs complied with essential principles of copyright, that programs met copyright's quantitative standard of authorship, and that no element of “literary quality” was required to support a claim of copyright in a computer program. Judge Fox went on to find that the object code versions of the programs were protected as translations of the source code versions. The court further observed that:


 * [t]ransliteration may more precisely explain what happens, but this is plainly comprehended within translation. This term doubtless normally suggests translation from one language to another but its ordinary meaning is wider and it is necessary to apply it with due regard for modern technology.

In concurring Judge Lockhart observed that:


 * object code is essentially a mechanical translation of the source programme into another language. The computer adds no creative element to the source programme. Given the source programme the object code version is predetermined by it. Object code is not a mysterious language which only computers can read. It is a language devised and developed by persons skilled in computer science which they can read and indeed translate into various computer languages. . ..

Australian High Court Decision
On May 6, 1986, the High Court reversed the appellate court, holding that under the unamended 1968 copyright law, protection did not extend to machine-readable versions of computer programs.

Discussion
This decision should have relatively little effect on the protection of programs in Australia, in view of the 1984 amendment specifically including programs as protected subject matter. In view of the provision that the amendments apply to subject matter made before the commencement of the Act in section 7 of the 1984 amendment, it is not likely to present problems with respect to programs published prior to the revision of the law.