Assignment Seminar IV
Chapter 2 Question 1
Pauline Proudfoot helped Merv Gherkin and its company Special Software Development and Supply Pty Ltd (SSDS) developing a gardening software and offered her expertise in gardening, some drawings and photograps. To be examined is here wether a copyright in the gardening software SSun CustomGardens Version 2.0 (Version 2.0) subsisted and wetherPauline Proudfoot obtained ownership of it by contributing to the development of SSun Custom Gardens Version 1.0 (Version 1.0).
1. Questionable appears if there subsists a copyright in the SSun software. Section 32 of the Copyright Act 1968 provides that a copyright in a work subsists where a original literary, dramatic, musical or artistic work has been expressed by a qualified person.
a.To be examined is if the SSun software contains works as subject matter of Part III of the Copyright Act. More specifically it is to be examined wether the SSun software is a computer program under s 10 (b) and thus a literary work.
i. Under the current provision, which has been introduced by the Copyright Amendment (Digital Agenda) Act 2000, a computer program is a set of statementsor instructions to be used directly or indirectly in a computer to bring about a certain result.
1. While the required statements or instructions represent the literary element, the terms of the provision also require this set of statements or instructions to cause a result, which represents the functional element, which is to drive a computer as it was seen by the High Court inAuto Data Access Corp v Powerflex Services Pty Ltd in a decision based on the former but in this aspect not changed provision.
2. Problematic could be that the SSun software does not only contain commands in the source code which have a functional purpose, which is to start the display of the drawings, texts, pictures or video clips and to combine them but it also contains datain form of the scanned drawings, the textual elements, the pictures and the video clips which lack a functional purpose. They are only displayed after started by the commands, which would not be consistent with the statuory definition of a computer program.
a. Although J Gaudron in Autodesk inc v Dyason sees data as a integral part of the entire set of statements andinstructions of a computer program, it has to be noticed that this decision was taken in an infringement case and that it is therefore of little importance to the judgement over subsistence of copyright.
1. The SSun package does contain within its source code commands, which have the functional purpose to trigger the display of the data, but this data itself does notprovide any function, it is merely displayed. As all the functional parts originate from the “off the shelf program” and Ari and Anna only added data to it, the SSun package is only a display of the data added by ari and anna and not a computer program in the sense of the statuory definition.
b. The SSun Package is not literary work in form of a computer program pursuant to section 10 of theCopyright Act.
c. But SSun package could be a literary work in form of a original compilation under section 10 as it contains a computer program, textual elements, drawings, pictures and video clips.
i. A compilation is a original combination of pre-existing works. According to J Drummond in A-One Accessory Imports v Off Road Imports the originality lies in the way the works arecombined.
ii. According to J Thomas in Kalamazoo v Compact Systems a combination of literary and artistic works amounts to a compilation in the statuory sense; SSun contains texts which are literary work and drawings which are artistic works. Also the computer program contained in the package is by virtue of section 10 a literary work.
1. The package also includes...