fa 253 _ Orig: nal -~ IN THO FEDERAL COURT OF AUSTPALTA ) ) NeW SOUTH WALES DiSTRICT REGISTRY ) ) } GENERAL DIVISTON No. G130 of 1983 BETWEEN: APPLE COMPUTER INC. and APPLE COMPUTER AUSTRALIA PTY. LIMITED Applicants AND: COMPUTER EDGE PTY. LIMITED and MICHAEL SUSS Respondents AND: COMPUTER EDGE PTY. LIMITED and MICHAEL SUSS Cross Claimants AND: APPLE COMPUTER AUSTRALIA PTY. LIMTTED Cross Respondent \ CORRIG™DA On page 10 line 13, befory the words "the respondent" the word "reaons" should read "reasons". D. Chang Associate to Mx. Justice Beaumont. CATCHWORDS Trade Practices - Misleading or deceptive conduct - Sale of micro-computer similar in appearance and able to operate using applicant's (Apple) computer programmes - Advertisements stating that the computer's software 'compatible with' applicant's computer programme - Whether misleading or deceptive conduct - Whether suggestion that respondents' computers manufactured, sold or advertised by or with licence of applicant question of fact - Prominent label sufficient to distinguish two products and dispel alleged connection. Copyright - alleged copyright infringement - Whether Court has jurisdiction to entertain claim under s.32 Federal Court of Australia Act - Claim that computer programmes are "original literary works" within meaning of Act considered - Whether computer programmes protected by copyright - Respondents' micro-computers alleged to incorporate reproduction of programmes used in applicant's computer. Trade Practices Act, 1974 ss.52, 53(c), 53(d), 55, 80. Copyright Act, 1968 ss.37, 38, 115 Federal Court of Australia Act, 1976 s.32 APPLE COMPUTER INC. and APPLE COMPUTER AUSTRALIA PTY. LIMITED v. COMPUTER EDGE PTY. LIMITED and MICHAEL SUSS No. G130 of 1983 Beaumont, J. 7 December, 1983. Sydney. "s IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN: i E Judge making orders: Date orders made: we ww No. G130 of 1983 APPLE COMPUTER INC. and APPLE COMPUTER AUSTRALIA PTY. LIMITED Applicants COMPUTER EDGE PTY. LIMITED and MICHAEL SUSS Respondents : COMPUTER EDGE PTY. LIMITED and MICHAEL SUSS Cross Claimants APPLE COMPUTER AUSTRALIA PTY. LIMITED Cross Respondent ORDERS Beaumont, J. 7 December, 1983. Where made: Sydney. THE COURT ORDERS THAT: 1. The application be dismissed as against the first and second respondents. 2. Applicants pay the costs of the first and second respondents of the claim. 3. The cross-claim be stood over generally with liberty to restore on three days' notice. 4. - Costs of the cross-claim be reserved. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY ews ws GENERAL DIVISION No. G130 of 1983 BETWEEN: APPLE COMPUTER INC. and APPLE COMPUTER AUSTRALIA PTY. LIMITED Applicants AND: COMPUTER EDGE PTY. LIMITED and MICHAEL SUSS Respondents ie COMPUTER EDGE PTY. LIMITED and MICHAEL SUSS Cross Claimants AND: APPLE COMPUTER AUSTRALIA PTY. LIMITED. SOSOCSCS~S~S~S~S~S Cross Respondent CORAM: Beaumont, J. DATED: 7 December, 1983. REASONS FOR JUDGMENT These are proceedings for injunctive relief pursuant to s.80 of the Trade Practices Act, 1974 and pursuant to s.115 of the Copyright Act, 1968; damages and an '| 2. account of profits are also sought. Contraventions of ss.52, 53(c), 53(da) and 55 of the Trade Practices Act and infringements of copyright are alleged. The proceedings arise out of the importation into and sale in, Australia by the first respondent, a Victorian company, of micro-computers under the name "Wombat". The second respondent is the managing director of the first respondent which retails computers and computer equipment. The "Wombat" computer is manufactured in Taiwan without the consent of the applicants. Put simply, the applicants claim that to the knowledge of the respondents, the Taiwanese manufacturer of the "Wombat" computer has copied their "software" (computer equipment) and "hardware" (peripheral equipment). The first applicant, a Californian corporation, makes and sells computers under the name "Apple". The second applicant is the Australian distributor of the first applicant's computers, including the "Apple II" computer. The primary claim under _s.52 and other provisions of the Trade Practices Act By their statement of claim, the applicants contend that, in marketing the Wombat computer, the first respondent Trade Practices Act are invoked. 3. is selling or offering for sale micro-computers which are similar in shape and have a similar keyboard to the Apple II computer and operate using Apple II programmes; that the first respondent is advertising that the Wombat computer is "compatible with programs for the Apple II;" and that such conduct signifies that the Wombat computers are manufactured or sold or advertised by or with the licence of the applicants or otherwise have the same provenance as the Apple II computers. Thus, ss.52, 53(c), 53(d) and 55 of the or There 1s no dispute as to the primary facts in this part of the claim. They are contained in the statement of agreed facts: "7. The first applicant has made and sold computers under the names 'APPLE Il', 'APPLE II PLUS', 'APPLE EUROPLUS' AND 'APPLE IILE'. 8. A large number of computers (including Apple II computers) have been sold throughout the world and throughout Australia under the name 'Apple'. 9. The applicants have advertised and promoted computers under the name Apple (including computers under the name APPLE II) widely throughout Australia and throughout the world. 10. The applicants have a substantial reputation in Apple II micro-computers. 4. ll. A great deal of software (computer programmes ) and hardware (peripheral equipment) is compatible with Apple II computers. * 12. The first respondent has imported and sold in Australia and, unless restrained, will sell in Australia micro-computers under the name WOMBAT. 13. Programmes suitable for Apple II computers-, can be used for Wombat computers .:7 14. The similarities and differences between the shape of the Apple II computer and the shape of the Wombat computer are apparent on a visual inspection of examples of the two computers which will be identified by agreement. (This was done by evidence given by David Roxbrugh Strong, the Managing Director of the second applicant.) 15. The first respondent has published and, unless restrained, will publish advertisements stating that 'Wombat software is compatible with programmes for the Apple II'. 16. A book entitled 'Apple II User's Guide' has been supplied by the first respondent to some of its customers. (The book was tendered.)" Mr. Strong gave evidence that more than 20,000 Apple II computers have been installed in Australia and that such computers have been advertised and promoted widely throughout Australia. He also gave evidence which, the applicants claim, indicated that the Apple II computer is of a distinctive and unusual shape and appearance so far as its 5. external casing, its keyboard and its internal components and layout are concerned. Mr. Strong also said that the various models of the Apple II computer constitute a range of products; that the range has included a computer known as Apple II "Europlus", from which the current model, the Apple II is derived; and that the applicants presently sell a computer under the brand name "Lisa". . ' wt The applicants submit that a visual inspection of the equipment indicates that the Wombat computer' is "closely similar" to the Apple II computer in physical appearance. Further, they say, the references, in the advertising, to the "compatibility" of the Apple programmes suggests a connection with the applicants. The respondents, on the other hand, contend that their product is easily distinguished from the Apple II computer and that there is no room for confusion between the two products, let alone conduct which is misleading or deceptive: they point to the facts that the Wombat computer is well and prominently labelled with the word "Wombat"; and that, in any event there are a number of differences in appearance. In particular, the Wombat keyboard has a numeric keypad as one of its most prominent visual features; the colour of the keyboard and the size and shape of the keys is not the same in the Wombat and the AppleII; and the overall shape of the two differs in many respects including 6. the lines across the top of the instrument, the shape of the bevelled edge and the appearance of the power light. The respondents then argue that a reference to "compatibility" with programmes for the Apple II cannot convey any suggestion that Wombat computers are manufactured, sold or advertised by or with the licence of the applicants. They also contend that the distribution of the booklet "The Apple II User's Guide" on the saie of a Wombat computer, cannot expressly or by any process of implication, be construed to be a representation that the Wombat computer is manufactured or sold or advertised by or with the licence of the applicants or that it has the same provenance as micro-computers manufactured or sold by the applicants. In my opinion, no contravention of s.52 has been made out in the present case for the reason that the circumstances do not disclose conduct which could, on any view, be likely to mislead or deceive. For this purpose, the question is one for the Court and the respondents' conduct must be looked at as a whole. But, in the end, ina case such as this, the issue is essentially one of fact, namely, whether the labelling of the respondents' goods was sufficient to dispel an impression that might otherwise be gained from the similarity of the two products that the respondents' goods were somehow connected with the applicants or that the applicants approved of their sale (see Parkdale Custom Built Furniture Pty. Ltd. v. Puxu Pty. Ltd. (1982) 56 A.L.d.R. 715 per Mason, J. at p.723). 7. In Puxu, Gibbs, C.J. explained the general position (at p.718): . "Speaking generally, the sale by one manufacturer of goods which closely resemble those of another manufacturer is not a breach of s.52 if the goods are properly labelled. There are hundreds of ordinary articles of consumption which, although made by different manufacturers and'of different quality, Closely resemble "one another. In some cases this is because the design of a particular article has traditionally, or over a considerable period of time, been accepted as the most suitable for the purpose which the article serves. In some cases indeed no other design would be practicable. In other cases, although the article in question is the product of the invention of a person who is currently trading, the suitability of the design or appearance of the article 1s such that a market has become established which other manufacturers endeavour to satisfy, as they are entitled to do if no property exists in the design or appearance of the article. In all of these cases, the normal and reasonable way to distinguish one product from another is by marks, brands or labels. If an article is properly labelled so as to show the name of the manufacturer or the source of the article its close resemblance to another article will not mislead an ordinary reasonable member of the public. If the label is removed by some person for whose acts the defendant is not responsible, and ain consequence' the purchaser is misied, the misleading effect will have been produced, not by the conduct of the defendant but by the conduct of the person who removed the label." e 8. Brennan, J. concluded (at p.729): "Of course, where identical or similar goods are on'the market, it may take very little evidence of conduct additional to the mere manufacture and sale of goods to establish a case under s.52. The degree of risk of confusion is material to an appreciation of the conduct of a trader in marking or getting up his goods for sale in competition with-the goods of another trader. In the'-present case, however, where Parkdale labelled the Rawhide suite in accordance with the practice of the trade and = the label clearly distinguished that suite from the Contour suite, there was no misleading er deceptive get up. If customers mistook the Rawhide suite for the Contour suite the mistake was not induced by Parkdale's conduct. It was not misleading or deceptive conduct merely to manufacture and sell a lounge suite similar to the Contour suite -- or, for that matter, a suite identical with the Contour suite. Something more was needed to show conduct inducing a mistaken belief that the Rawhide suite was manufactured by Puxu, but the only additional evidence, the label, showed conduct which was calculated to correct any confusion as to source." In the present case, in my view, no purchaser of the respondents' goods is likely to be misled or deceived into believing that the respondents or their goods are in any way associated with the applicants: on the contrary, the respective products are clearly distinguished from one another by the use of very different brand names and the reference, in advertising, to the "compatibility" of Worbat software with programmes for the Apple II computer only serves to reinforce the distinction. In my opinion, the primary claim under s.52 must fail. 9. The case sought to be put by the applicants on the other provisions of the Trade Practices Act, namely, ss.53(c), 53(da) and 55 must also fail, for similar reasons. Given the conclusion reached that the respondents' products have been sufficiently distinguished from the Apple range of computers, it must follow that no false representation of the kind contemplated by s.53({c) or (d) has been made and that no misleading conduct'of the kind proscribed by s.55 has been established. Again, this is essentially a question re of fact that must be resolved adversely to the applicants. In the circumstances, this part of the claim is also rejected. The secondary claim under _s.52 and other provisions of the Trade Practices Act. In this claim, the applicants alleged that the first respondent has sold, offered for sale and advertised Micro-computers each of which contains, inter alia, three silicon chips being ROMs (Read Only Memory) or E-PROMs (Erasable and Programmable Read Only Memory or Electrically Programmable Read Only Memory) or a combination of ROMs and E-PROMs amounting to three such chips in all ("the chips"); and that for reasons later advanced by the applicants the chips are infringing copies within the meaning of s.10 of 10. the Copyright Act; that by virtue of s.116 of the Copyright Act, the first applicant is entitled in respect of the chips to the rights and remedies, by way of an action for conversion or detention, to which it would be entitled if it were the owner of the chips and had been the owner of the chips since the time when they were made; that by virtue of s.69 of the Trade Practices Act, in every contract for the sale of micro-computers 'by the first respondent to a consumer, there is an implied condition that the first respondent has a right to sell the micro-computers including the chips and an implied warranty that the consumer will enjoy quiet possession of the micro-computers including the chips; that, for these reaons, the respondent does not have the right to sell the micro-computers including the chips; so that the consumer will not enjoy quiet possession of the micro-computers ancluding the chips in the event of notification of the consumer by the first applicant as to its rights and remedies with respect to the chips or in the event of a demand by the first applicant for the return of the chips. Thus, the applicants say, the first respondent has engaged in conduct which 1s misleading or deceptive or is likely to mislead or deceive within the meaning of s.52. Similar claims are made under ss.53(g) and 55. This claim is novel and there may well be more than one answer to it. However, it is not necessary to discuss all the questions raised since, for reasons I give later, in my view, no infringement of copyright has occurred. For that reason alone, this claim is also rejected. ll. The claim for infringement of copyright. . The applicants submit that the Court has jurisdiction to entertain this claim either by virtue of s.32 of the Federal Court of Australia Act, 1976 or by virtue of its accrued jurisdiction. Subject to one matter, the respondents, aithough rot conceding the point, did not put any argument contesting jurisdiction. The reservation ry expressed by the respondents was that, although argument had taken place, the High Court had not then given judgment in Stack v. Coast Securities (No. 9) Pty. Ltd. (1983) 57 A.L.J.R- 731 and the respondents wished to reserve the raght to put further submissions on jurisdiction if the reasoning in Stack suggested that it would be appropriate to do so. Since I reserved judgment in this matter, the High Court has given judgment in Stack (on 12 October, 1983). In my opinion, there is nothing 1n the majority decision in that case which would suggest that the Court does not have jurisdiction to entertain the copyright claim, at least under s.32. Earlier authority confirms this (see Phillip Morris Incorporated v. Adam P. Brown Male Fashions Pty. Ltd. (1981) 33 A.L.R. 465 at pp.476-7, 490-1, 507, 511, 524-6 and 533; Superstar Australia Pty. Ltd. v. Coonan & Denlay Pty. Ltd. (1981) 40 A.L.R. 183 at p.187; Rolls-Royce Motors Ltd. v. D.I.A. (Engineering) Pty. Ltd. (1981) A.T.P.R. 40-209 at p-42896). 12... The copyright claim is put in a number of ways. First, it is said that the first applicant is the owner of copyright in the following original literary works: A. "Applesoft" - a computer programme in source code (hereinafter called "Applesoft source"); B. "Applesoft" ~- a computer programme in machine or object code (hereinafter called "Applesoft object"); ee . c. "Autostart ROM" - a computer programme in source code (hereinafter called "Autostart source"); D. "Autostart ROM" - a computer programme in machine or object code (hereinafter called "Autostart object") (statement of claim, para.41). Alternatively, it is said that the first applicant is the owner of copyright in the following original literary works: (a) "Applesoft" - a computer programme in source code ("Applesoft source"); and (b) "Autostart ROM" - a computer programme in source code ("Autostart source") (statement of claim para.42). 13. Alternatively it is said that the first applicant has made or caused to be made adaptations of Applesoft source and Autostart source being versions of those works in object code (hereinafter called "the Applesoft adaptation" and "the Autostart adaptation" respectively). The applicants claim each of the works referred to in paras.4l and 42 of the'statement of claim ("the works") was made after 1 May, 1969 in the United states of America oy by persons who were citizens or nationals of or' resident in the United states of America; that two of the chips referred to earlier and part of the third such chip together constitute a reproduction in a material form of the whole or a substantial part of Applesoft source and of the whole or a substantial part of Applesoft object. Alternatively, it is claimed that two of the chips and part of the third such chip together constitute a reproduction in a material form of the whole or a substantial part of Applesoft source and of the whole or a _ substantial part of the Applesoft adaptation. It is further claimed that part of one of the chips is a reproduction in a material form of a substantial part of Autostart source and of a substantial part of Autostart object. Alternatively, the applicants say that a part of one of the chips is a reproduction in a material form of a substantial part of Autostart source and of a substantial part of the Autostart adaptation. It is then said that the first applicant did not make the chips and gave no licence to the respondents or any of them to make the chips. 22. 15. (b) mnemonics each consisting of 3 letters of the alphabet and each corresponding to a particular operation expressed in 6502 Assembly Code; (c) mnemonics identifying the register in the microprocessor and/or the number of the instruction in the programme to which the operation referred to in (6B) relates; and (dad) comments intended to explain the function of the particular part of the programme for the benefit of a human reader of the programme. It is not possible to reconstruct from existing evidence the labels (a) or the comments {d). However, it is possible to reconstruct the mnemonics referred to under (b) and (apart from the change in the labels used) the mnemonics referred to under (ec). (Such a reconstruction appears in a document identified and tendered by consent). Before 1t was destroyed, the Applesoft source programme was used to make another programme called the APPLESOFT OBJECT PROGRAMME. A computer was used in this process and this computer was programmed with one or more programmes written by a person or persons other than Wigginton. The OBJECT PROGRAMME in the first instance consisted of a sequence of electrical impulses within a computer. 14. An infringement of copyright is thus alleged and ss.37 and 38 are invoked against the respondents. , Again, there is no contest on the facts. material, the statement of agreed fact states: "17. 18. 19. 20. 21. Kenneth Randall Wigginton is and has been at all material times a citizen of the United States of America. In 1977 the first applicant obtained a copy of a programme entitled MICROSOFT BASIC from Microsoft Inc-, a corporation unrelated to the applicants. Thais consisted of about 10,000 lines of code together with comments thereon and explanation thereof. Between August 1977 and approximately December 1977 Wigginton, (then employed by the first applicant) modified the MICROSOFT BASIC programme by altering or rewriting some of the lines thereof. The programme thus modified was called APPLESOFT. ' Both the original MICROSOFT and the original APPLESOFT programme have since been destroyed. The programme as originally written by Wigginton had four elements: (a) labels identifying particular parts of the programme; So far as 22A. 23. 23A. 24. 25. 26. 27. 16. After the electrical impulses referred to in paragraph 22 were generated, Wigginton then used the computer "to store a representation of' the impulses on a magnetic disc or tape. The magnetic disc or tape is capable of being used in conjunction with a computer to generate the same sequence of electrical impulses. It is possible to describe this sequence of electrical impulses using certain conventions. In one such 'convention, HEXADECIMAL notation is used. (A description of the APPLESOFT OBJECT PROGRAMME using HEXADECIMAL notation is set out in a document identified and tendered.) Magnetic tapes capable of being used in conjunction with a computer to generate the sequence of electrical impulses referred to in paragraph 22 were first sold to the public by the first applicant in the U.S.A. in 1978. Wigginton executed a document (of assignment in favour of the first applicant) to be identified and agreed. (This document dated 16 May, 1983 was tendered.) At all material times Stephen Gary Wozniak was a citizen of the United States of America. In 1977 Wozniak wrote a computer programme called "SYSTEM MONITOR PROGRAM" in the United States of America. The programme as originally written by Wozniak had the four elements described in paragraph 21. In addition, Wozniak also wrote a number of the operating codes in a conventional representation in HEXADECIMAL notation of a number of the mnemonics expressed in 6502 ASSEMBLY CODE. 274A. 28. 29. 30. 31. 17. With the aid of a computer, Wozniak then generated a number of electrical impulses, and images on a visual display unit, and edited the System Monitor Programme. Wozniak then used the computer to 'store a representation of' the impulses on a magnetic disc or tape. The Magnetic disc or tape is capable of being used in conjunction with a computer to generate the same sequence of electrical impulses. oT Silicon chips capable of being used in conjunction with a suitably programmed computer "ro generate the sequence of electrical impulses referred to in paragraph 27 were first sold to the public in the U.S.A. by the first applicant in 1977. In 1978, John Arkley, a citizen of the United States of America, modified the 'SYSTEM MONITOR PROGRAM '. The programme so modified is known as the AUTOSTART PROGRAMME. Arkley did this work during the course of and within the scope of his employment by the first applicant. The texts of the SYSTEM MONITOR PROGRAMME and the AUTOSTART PROGRAMME are to be identified and agreed. Wozniak executed a document (of assignment in favour of the first applicant) to be identified and agreed. (This document, dated 11 August, 1980, was tendered.) The AUTOSTART PROGRAMME was used to make another programme called the AUTOSTART OBJECT PROGRAMME. A computer was used in this process and this computer was programmed with one or more programmes. The OBJECT PROGRAMME in the first instance consisted of a sequence of electrical impulses within a computer. we eee agreed: By a statement of further agreed facts, the parties 32. 32A. 33. 34. 18. It is possible to describe this sequence of electrical impulses using certain conventions. In one such convention HEXADECIMAL notation is used. A description of the AUTOSTART OBJECT PROGRAMME using HEXADECIMAL notation is set out in a document to be identified and agreed. The electrical impulses referred to in paragraph 32 were 'stored' in the manner described in paragraph '22A. Silicon chips capable ° of being used in conjunction with a computer and another programme or programmes to generate the sequence of electrical impulses referred to in paragraph 22 were first sold to the public by the first applicant in 1979. The Wombat computers sold by the first respondent contain 3 ROMS or 3 ROMS and EPROMS. On 15 April, 1983 the first respondent sold to Jeffrey Duffus McLeod, an employee of the second applicant, a Wombat computer to be identified and agreed. In the same box was an "APPLE II USERS GUIDE" to be identified and agreed. (The guide was tendered.)" mo re ee me tee oes "36. 37. 38. 39. 40. 41. 19. A listing of the Autostart ROM program in hexadecimal notation was filed by the first applicant in the U.S. Copyright Office. A copy of the certificate of registration is Ex 'S'; a copy of the listing is Ex 'T'. The effective date of registration is 14 April, 1982. A listing of the Applesoft program in hexadecimal notation from location EOOO to location FPSFF was -filed by the first applicant: tin the U.S. Copyright Office. A copy of the certificate of registration is Ex 'U'; a copy of the listing is -Ex 'Vi. The effective date of registration is 4 May, 1982. By oversight, at the time of these proceedings, the listing which is Ex ''V' does not contain a listing of Applesoft from location DOOO to DFFF. A complete listing of the Applesoft program in hexadecimal notation from location DOOO to location F8FF was filed by the first applicant in the U.S. Copyright Office. A copy of the certificate of registration is Ex 'W'; a copy of the listing is Ex 'xt. The effective date of registration is 3 March, 1983. A reconstruction of the Applesoft program of the type described in paragraph 21 was filed by the first applicant in the U.S. Copyright Office. A copy of the certificate of registration is Ex ''y'; a copy of the document lodged is Ex 'Z'. the effective date of registration is 7 January, 1981. Ex 'Z' also contains labels and comments of the kinds referred to in sub~paragraph 21(a) and 21(c)." nw wee emt oe a - 20. In addition to the facts agreed, the applicants rely upon evidence given by Mr. Strong by affidavit and viva vole to which reference will be made below. The respondents callead no evidence, although Mr.Strong was cross-examined at some length. The applicants' claim in respect of Applesoft may be tT summarised as follows. In 1977, Mr. Wigginton wrote a computer programme called "Applesoft"; 1t was, written in the U.S.A. in the form of handwriting on paper by Mr. Wigginton when he was an employee of the first applicant and in the course of that employment; he has assigned any copyright which he owned in "Applesoft" to the first applicant; in writing "Applesoft", Mr. Wigginton took a pre-existing work called "Microsoft Basic"; he modified and revised this and added a substantial amount of new material; although the material added, revised, or modified by Wigginton cannot be identified line by line throughout Applesoft, it relates largely to the provision of graphics and colour sub-routines and it involved considerable skill and labour; Mr. Wigginton first wrote "Applesoft" ina computer "language" called 6502 Assembly language and in that language, three letter "mnemonics" are used to represent English words phrases and sentences; accordingly, the applicants say, the term "notation" is to be preferred to "language". 21. The applicants then submit that ""Applesoft" is a new and original literary work in which copyright subsists: it was made when it was first written by Mr. Wigginton. The reconstruction tendered is best evidence of it. Further, "Applesoft Object" is a reproduction in a material form of "Applesoft". ""Applesoft Object" has been reduced to and embodied in a variety of material forms, namely, magnetic disk or tape, silicon chips and computer printouts. 6502 Assembly language (or notation) and hexadecimal notation are, the applicants contend, merely different notations for the same words and phrases which comprise part of ""Applesoft"; alternatively, "Applesoft Object" is a new original literary work distinct from "Applesoft", of which new work Wigginton is the author; alternatively, "Applesoft Object" is an adaptation or translation of "Applesoft". J P A similar case is put in respect of the Autostart programme. In considering whether the respondents have aunfringed the applicants' alleged copyright in one or more of these alleged literary works, the following issues at least arise as to each of the alleged literary works: (a) Is it a "literary work" within the meaning of the Copyright Act? - 22. (b) If so, is it an "original literary work" within the meaning of that Act? (c) .I£ copyright subsists in the alleged work, is the first applicant now and has it been at all material times the owner of this copyright? (d) If so, would the making of the ROMs in the Wombat, if they had been made in Australia by the respondents, have P4 7? r constituted an infringement of this copyright? (e) If so, was this known to the second respondent? In my opinion, none of the programmes are literary works within the meaning of the statute. In my view, a literary work for this purpose is something which was intended to afford "either information or instruction or pleasure in the form of literary enjoyment" (see Hollingrake v. Truswell (1894) 3 Ch.420; Exxon Corporation v. Exxon Insurance Consultants International Ltd. (1982) R.P.C. 69 at p-88; cf. D.P. Anderson & Co. Ltd. v. Lieber Code Company (1917) 2 K.B. 469; Mirror Newspapers Ltd. v. Queensland Newspapers Ltd. (1982) 59 F.L.R. 71; Northern Office Micro Computers (Pty.) Ltd. v. Rosenstein (1981) (4) S.A. 123(c); Sega _ Enterprises Ltd. v. Richards (1983) F.S.R. 73> at pp.74-5). The function of a computer programme is to 23- control the sequence of operations carried out by a computer. In this sense, as Dr. Emmerson submitted on behalf of the respondents, a contrast may properly be drawn between .something which is merely intended to assist the functioning of a mechanical device and literary work so called. The position is even stronger in the case of the object programme, as Rosenstein, supra, recognises: this type of programme as Dr. Eiftmerson submitted, is at a more advanced stage of the process of controlling the sequence of "fy - operations carried out by a computer. Support for the conclusion I have formed may, I think, be found in the circumstance that the legislature has decided to extend the protection afforded by statutory copyright to literary works in the form. of cinematograph films, sound recordings and the like. This was done at a time when computers had been developed and were well known. In my view, the omission by the Parliament to make any reference to computers or computer equipment when it determined to extend the scope of copyright protection should be treated as an indication on its part that this field was not to be afforded the significant privilege given by copyright, but intended rather to leave such matters to be dealt with by other legislation dealing with patents and industrial designs. As a matter of policy, support for this approach is found in the observations made by Fox and 24. pet ete Franki, JJ. in Edwards Hot Water Systems v. S.W. Hart & Co. Pty. Ltd. - unreported 12 October, 1983 at pp. 7, 10, ll; 7, 8 and 34 respectively). I should add that because of the 1976 and 1980 amendments to the United States copyright legislation, specifically dealing with copyright protection for computer programmes, decisions of the Courts of that country, e.g. Apple Computer Inc. v. Franklin Computer Corporation - eT unreported, 30 August, 1983, cannot assist in the present case. In the circumstances, it is unnecessary that I deal with the other arguments advanced on behalf of the respondents. I propose to dismiss the copyright claim and thus to dismiss the application, with costs. The respondents have cross~claimed for an injunetion to restrain the applicants from (inter alia) sending a circular letter making various claims which, the respondents say, are misleading and deceptive. It is possible that this is no longer a live issue between the parties and, therefore, I propose to stand the cross-claim over generally but to reserve liberty to apply should that be necessary. ! certify thar this and Pages are a true Copy of the reasons for Judgment herein of The Honourable Mr Justice Beaumoni. Deine _ 'Aste iate Dated / Deemie-17 73 wae the <3 preceding