The Federal Court’s decision on Achos Pty Ltd v Ucorp Pty Ltd demonstrates the difficulties that may arise in claiming copyright protection over digital works, particularly where several people have contributed to their creation.

The Court’s June decision denied copyright protection in the source code of certain electronic files that were based on data entered into a computer program. It was yet another recent case addressing the concept of joint-authorship and emphasising the importance of identifying authors whose contribution is not separate from other authors.

The dispute involved Material Safety Data Sheets (MSDS) – information sheets on hazardous substances given out by manufacturers, importers and suppliers of hazardous substances. Acohs and Ucorp are both in the business of producing electronic MSDS.

Achos claimed that Ucorp had infringed the copyright in, amongst other things, the source code underlying several of its electronic MSDS.

Justice Jessup acknowledged that source code is capable of being protected as a literary work, noting: “There is no a priori reason to deny a body of source code…the status of a literary work. It consists of words, letters, numbers and symbols which are intelligible to someone skilled in the relevant area, and which convey meaning.”[1]

However, the issue was whether the source code was “original” and in deciding on the question of originality, the Court emphasised the importance of authorship, referring to the recent decision in IceTV Pty Ltd v Nine Network Australia Pty Ltd[2].

Acohs produces MSDS through its “Infosafe System” computer program, whereby a central database generates the MSDS from information entered into the system by employees or customers. At issue was whether the programmers who wrote the source code for the Infosafe System, and those carrying out the later data entry using that system, were collaborators in producing the source code which Ucorp was said to have copied.

The Court found that the effort of the original programmers was quite separate to that of the data entry authors. Consequently, it held that since the source code was not the work of one author or a work of joint authorship, the code could not be regarded as an original literary work.

Read the full judgment at:

http://www.austlii.edu.au/au/cases/cth/FCA/2010/577.html

[1] Acohs Pty Ltd v Ucorp Pty Ltd [2010] FCA 577, at 47.

[2] IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14.