Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Software AG (Australia) Pty Ltd v Racing & Wagering Western Australia [2009] FCAFC 36
CONTRACT – software licence agreement – clause permitting the copying of the software system for "emergency restart purposes" – copy maintained at disaster recovery site by third party service provider – whether installation and testing of copy at disaster recovery site authorised by clause permitting making of copy – meaning of "emergency restart purposes". COPYRIGHT – statutory exceptions to infringement of copyright in computer programs – s 47F of Copyright Act 1968 (Cth) – whether testing of copy to determine its efficacy in case of emergency constitutes "testing … the security of the original" for the purposes of s 47F. COSTS – Calderbank offer – indemnity costs awarded on basis of rejection of offer and making of exaggerated claim at trial – whether exercise of discretion miscarried. Copyright Act 1968 (Cth) ss 47C, 47F Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 cited Black v Lipovac (1998) 217 ALR 386 cited Colgate‑Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 cited Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 cited House v The King (1936) 55 CLR 499 applied International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 cited Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 cited Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 cited Seven Network Ltd v News Ltd (2007) 244 ALR 374 cited SOFTWARE AG (AUSTRALIA) PTY LTD (ACN 090 139 503) v RACING & WAGERING WESTERN AUSTRALIA
WAD 200 of 2008
SPENDER, SUNDBERG AND SIOPIS JJ
20 MARCH 2009
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY WAD 200 of 2008
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