Copyright in software – the latest word from the Federal Court

By Tim Golder, Stefan Ladd
Intellectual Property Patents & Trade Marks

Important implications for the enforcement of copyright in software under Australian law 3 min read

The Federal Court has handed down its judgment in Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd [2021] FCA 809 in a decision with important implications for copyright enforcement in software under Australian law. The decision confirms that copyright may subsist not only in relation to a software system as a whole, but also in subsets of instructions or statements within that overall system.

Key takeaways

  • In Campaigntrack, the Federal Court considered whether copyright can subsist in relation to a subset of specific statements or instructions within a larger body of software, notwithstanding the subsistence of copyright in respect of the overall system.
  • The significance of this issue is that, when enforcing copyright in software, it may be easier to show that an alleged infringer has copied a substantial part of a specific subset of the software, rather than the entire system.
  • The court confirmed that a subset of instructions or statements may constitute a 'computer program' within which copyright subsists, notwithstanding that the subset forms part of a larger computer program. Whether the subset will itself be a computer program depends on whether it 'can fairly be regarded as so separate from the material with which it is collated as to consisted an original work'.

Who in your organisation needs to know about this?

In-house legal counsel; software developers.

What happened in Campaigntrack v Real Estate Tool Box?

Campaigntrack owned the copyright in a cloud-based real estate marketing system, known as 'DreamDesk'. Campaigntrack brought various claims against Mr David Semmens and others relating to another real estate marketing software system, the 'Real Estate Tool Box'. Campaigntrack claimed that the 'Tool Box' reproduced parts of the DreamDesk source code, thereby infringing its copyright.

Campaigntrack was partially successful, with the court finding that Mr Semmens, the primary developer of the Real Estate Tool Box, had directly infringed copyright in the DreamDesk system and had authorised the infringing acts of developers under his supervision, as well as system users.

Subsistence of copyright in individual subsets of the DreamDesk code

An interesting aspect of the court's decision was its analysis of subsistence of copyright. In addition to claiming copyright in the DreamDesk system as a whole, Campaigntrack relied on copyright within particular files within the DreamDesk source code. Campaigntrack claimed that the files were 'computer programs', and therefore literary works, for the purposes of the Copyright Act.

The court confirmed that a subset of statements or instructions within software may itself constitute a 'computer program', notwithstanding that the subset also forms part of a larger set of statements or instructions which constitute a computer program.

According to the court, whether a subset can itself be considered a 'computer program' is fact dependent, and turns on whether the subset 'can fairly be regarded as so separable from the material with which it is collated as itself to constitute an 'original work''.

In this case, the court held that the relevant files were computer programs having regard to the separate function each played within the overall system, these being functions 'of sufficient substance for each file to be regarded as itself an 'original work'.

Actions you can take now

When seeking to enforce copyright in proprietary software:

  • carefully consider whether copyright should be claimed not only in the system as a whole but in particular files within the source code; and
  • seek advice from our experts as needed.