Avoid a hard landing for bundled software

  • By:O'Reilly Stevens Lawyers

Campaign Track Pty Ltd v Real Estate Toolbox Pty Ltd (2021) is a reported decision of the Federal Court of Australia.  It confirms that a subset (i.e. a part of a larger group of related things) of instructions or statements within a software system can be the subject of copyright, which can be enforced against an infringer.  In other words, a subset of statements or instructions may constitute a ‘computer programme’ in which copyright subsists.  A subset forms part of a larger computer programme.

The Court held that notwithstanding the subsistence of copyright in respect of the overall system, copyright can subsist in relation to a subset of specific statements or instructions within the larger body of software.  When seeking to protect or enforce copyright in computer software where the potential or actual infringer has copied a substantial part of a specific subset of the software, though not the entire system, copyright may subsist in the subset exposing the infringer to an action for copyright infringement. 

The major question is whether the subset will itself be a ‘computer program’ and this will depend on whether it can be fairly regarded as so separate from the material with which it is collated as to constitute an original copyright work

The plaintiff, Campaign Track Pty Ltd, claimed copyright in its entire system, but it also relied on copyright within particular files within the source code.  It argued that the files were ‘computer programmes’ and therefore literary works for the purposes of the Copyright Act 1968.  The Federal Court of Australia agreed.  It 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.

Caution must be exercised by computer programmers and others persons working within the publishing and advertising industries, and if in doubt, they should seek legal advice:  from O’Reilly Stevens Lawyers, of course.

written by Thomas Stevens, Director and head of the Commercial Law Division

Posted in: Commercial Law