Computer generated source code not protected by copyright

A recent Federal Court case has highlighted the nuances that can face developers of software when attempting to protect certain aspects of their software’s output. Specifically, the Federal Court found that source code generated by a software program based on data entered by users was not an original literary work and therefore did not qualify for protection under the Copyright Act 1968.

In order to qualify for protection under the Copyright Act, an owner must show that their work is an “original artistic work” as that phrase is defined, and must be able to identify the author.

Acohs Pty Ltd is in the business of preparing and supplying Material Safety Data Sheets (MSDSs) to customers. It is the owner of a software program, Infosafe Systems, that contains a database of information used to generate MSDSs. The information in the database was entered by Acohs’s employees and the software program would generate HTML source code to display the relevant MSDS as requested by customers.

Ucorp Pty Ltd is in a similar business as Acohs but instead relied upon an electronic library of MSDSs prepared by its own employees and MSDSs it located from other sources, including those generated by Acohs.

Acohs claimed copyright in the datasheets and the HTML source code for each datasheet.

The Federal Court found that whilst the HTML source code did qualify as a literary work, it could not qualify as an original literary work because it was not written by a human author but rather generated by a computer program. The Court also rejected the proposition that the source code was a work of joint ownership between the software developers that originally wrote the software and the users who entered the data required to generate the MSDSs.

In respect of the datasheets themselves, the Court found that they did constitute original literary works, but that as for the source code, no human author could be identified.

The case now appears to have been listed for appeal to the Full Court of the Federal Court. In the meantime, this decision has ramifications for businesses that use software to create digital products which have some inherent value. These issues may be able to be overcome by way of considering carefully the authorship process or some means of documentation. For more information and assistance, please contact Certus Legal Group.