This case concerned a dispute over the unauthorised copying of files forming part of computer software known as a website content management system (CMS).

The applicants alleged that a former employee, Mr Petro, infringed copyright in the source code of the company’s CMS. They submitted that Mr Petro copied the table file and editor file (JavaScript files) from a website created for a Dais client, HR Advantage, for use in other commercial websites. The applicants also claimed breach of confidence and contract, and contravention of the Corporations Act.

The claim against Bullet Creative Pty Ltd, which engaged Mr Petro, was settled at the commencement of proceedings.

Justice Jessup agreed with the parties that the CMS source code was a “computer program” under the Copyright Act. His Honour found that the JavaScript files also satisfied the section 10 definition of “computer program”, being “a set of instructions used in a computer to bring about a certain result”.

The case turned on the question of whether Mr Petro had reproduced the table file and/or the editor file from a particular version of Dais’ CMS, developed during a project for HR Advantage.

His Honour found that Mr Petro had not reproduced the JavaScript files from the HR Advantage website, but nonetheless went on to consider whether or not, if he had found any actual copying, the JavaScript files were a “substantial part” of the CMS source code. His Honour concluded that they were not.

Although the files were, in a functional sense, integral to the CMS, his Honour was not presented with any argued case to establish that “a degree of skill, labour and judgment ha[d] given the table file and the editor file an originality which made them a qualitatively substantial part” of the CMS. Further, a quantitative analysis showed that the file source code constituted a very small percentage of the total lines of code in the CMS.

The application was dismissed.

Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2007] FCA 2054 (20 December 2007)