Adaptions, computer code and copyright

An adaption in copyright is the exclusive right of the owner of the work in question.  Section 10 of the Copyright Act 1968 (Cth) (Act) defines adaption as it relates to literary works in dramatic and non-dramatic forms, in a computer program and in relation to a musical work.   The rights that apply to adaptions in different separate classes of literary works differ according to the respective category in question.

Adaptions of computer code

To understand how the concept of an adaption works in relation to computer code as a distinct class of literary works it is necessary to start from the definition.  Section 47AB of the Act defines a:

“computer program to include any literary work that is:

(a)  incorporated in, or associated with, a computer program; and

(b)  essential to the effective operation of a function of that computer program.”

Section 10(ba) of the Act defines the term adaption in relation to a computer program as:

“a version of the work (whether or not in the language, code or notation in which the work was originally expressed) not being a reproduction of the work.”

The adaptation may or may not be in the same language, code or notation the work was originally expressed in.

It is great to see the legislature keeping pace with changes in technology and the case law, as the definition of adaption was amended in 1984 seemingly in response to the decision of the full Court of the Federal Court in Re Apple Computer Inc and Apple Computer Australia Pty Ltd v Computer Edge Pty Limited and Michael Suss [1984] FCA 137 (which was later appealed to the High Court) in Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171. In that case, a computer program was said to be:

“a set of instructions designed to cause a computer to perform a particular function or to produce a particular result.”

The High Court also discussed the meaning of “object code”, which the Court said is:

“machine readable, i.e, which can be directly used in the computer. The program in object code, the object program, in the first instance consists of a sequence of electrical impulses which… when installed in the computer and electrical power is applied… cause the computer to take the action which the program is designed to achieve.”

This can be compared to the definition of “source code”, which was defined by the High Court in Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49  (Data Access) as:

“the set of human readable instructions typically used in computer programming.”

The rights in relation to original works contained in section 31(1)(a)(vi) and 31(1)(d) include the right to make an adaption of the works and in the case of a computer program includes the right to enter into a commercial rental agreement in respect of the program.  Once an adaption is created, copyright exists in the adapted work.

Is an adaption of computer program automatically infringing?

Under general copyright principles, according to section 36 of the Act, the reproduction of another programmer’s code without their consent amounts to an infringement of copyright.  Section 21(5) of the Act relates specifically to computer programs and provides that:

“For the purposes of this Act, a computer program is taken to have been reproduced if:

(a) an object code version of the program is derived from the program in source code by any process, including compilation; or

(b) a source code version of the program is derived from the program in object code by any process, including decompilation;

and any such version is taken to be a reproduction of the program.”

Division 4A of the Act defines exceptions to infringement of copyright in computer programs, including:

• the reproduction for normal use or study of computer programs;
• back-ups or copies of computer programs;
• reproducing computer programs to make interoperable products;
• reproducing computer programs to correct errors; and
• reproducing computer programs for security testing.

The question of infringement of copyright in computer code was considered in Data Access. The question for the High Court was whether the allegedly infringing software was itself a computer program, or whether it was a substantial part of the preceding program owned by Powerflex.

The High Court clarified the meaning of “computer program” and “adaption” as well as the test for “substantial reproduction”.  With respect to the process of converting object code into source code, the High Court said that this:

“will sometimes result largely in a substantial reproduction of the original program. In other cases, however, such as compilation followed by de-compilation, the differences may be so substantial that one cannot speak of a reproduction although the final product is clearly derived from the original. The new definition of adaptation is intended to cover such situations.”^[1]

Reproduction of computer programs for the purposes of interoperablability

Section 47D of the Act provides that:

“(1) Subject to this Division, the copyright in a literary work that is a computer program is not infringed by the making of a reproduction or adaptation of the work if:

 (a) the reproduction or adaptation is made by, or on behalf of, the owner or licensee of the copy of the program (the original program) used for making the reproduction or adaptation; and

(b) the reproduction or adaptation is made for the purpose of obtaining information necessary to enable the owner or licensee, or a person acting on behalf of the owner or licensee, to make independently another program (the new program), or an article, to connect to and be used together with, or otherwise to interoperate with, the original program or any other program; and

(c) the reproduction or adaptation is made only to the extent reasonably necessary to obtain the information referred to in paragraph (b); and

(d) to the extent that the new program reproduces or adapts the original program, it does so only to the extent necessary to enable the new program to connect to and be used together with, or otherwise to interoperate with, the original program or the other program; and

 (e) the information referred to in paragraph (b) is not readily available to the owner or licensee from another source when the reproduction or adaptation is made.”

This exception was considered by the Federal Court in CA Inc v ISI Pty Ltd [2012] FCA 35, where the Court discussed the complexity of the exception, and said it was ineffective for a number of reasons.  Use of the exception is limited because it does not allow programs to be ‘reproduced in the interoperable program’, and does not appear to extend to ‘copying which is necessary to make software work with hardware’.  The Court noted that, to create an interoperable program, it is often not practically possible to reproduce programs ‘only to the extent necessary to obtain the information as is required by the exception’.

This position is shared with the Internet Industry Association, who, in a 2012 submission to the Law Reform Commission, argued that:

“The very limited nature of the rights to copy for the purpose of reverse engineering (s 47B and s 47D) is also an impediment to those wishing to study code in order to create new and/or interoperable systems. Note in particular that the relevant provisions do not permit reproduction for the purpose of testing interoperability.”^[2]

Takeaways

Adaptions of computer code occur when a work is modified in such a way that it is not a reproduction.   If an adaption has a significant distinction from an original work, it will be considered an independent work and will not infringe the copyright of the preceding work.  There are some other exceptions to infringement of copyright in computer programs which must also be considered when creating an adaption.

Links and further references

Copyright Act 1968 (Cth)

CA Inc v ISI Pty Ltd [2012] FCA 35

Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19; (1986) 161 CLR 171

Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49

Internet Industry Association, Submission 253

Further information about copyright in adaptions

If you need advice on your copyright in an adaption please telephone me for an obligation free and confidential discussion.

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] Data Access Corporation v Powerflex Services Pty Ltd [1999] HCA 49 [19].

^[2] Internet Industry Association, Submission 253.

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