Autodesk Inc v Dyason [1992] HCA 2

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Gaudron JJ. Autodesk Inc v Dyason [1992] HCA 2

ORDER Appeal allowed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1992. Feb. 12 Mason C.J., Brennan and Deane JJ.

We agree with the judgment of Dawson J. We add some supplementary comments.

The definition of "computer program" which was introduced by the 1984 amendments to the Copyright Act 1968 Cth ("the Act") focuses upon "an expression, in any language, code or notation" [1] of a set of instructions of the designated kind rather than upon the set of instructions itself. The result is that it is arguable that the effect of the 1984 amendments is merely to recognize copyright in a particular existing "expression" or description of the relevant "set of instructions" in some "language, code or notation". That narrow literal construction would, however, partly frustrate the obvious legislative intent to confer real protection upon the actual set of instructions regardless of whether they be actually expressed in written form or merely embedded or stored in a non-sensate form such as electrical impulses on a disk, ROM or EPROM. Indeed, it is arguable that it would deprive the 1984 amendments of any significant effect since the three Justices who constituted the majority of the Court in Computer Edge Pty. Ltd. v. Apple Computer Inc. [2] expressly held or assumed that copyright subsisted in the written expression of the source code while none of them suggested that copyright would not have subsisted in an actual written expression (in language, code or notation) of the object code, if one had existed [3] .

1. s. 10(1). 2. (1986) 161 C.L.R. 171, at pp. 182-183, per Gibbs C.J., 201-202, per Brennan J., 214, per Deane J. 3. ibid., at pp. 183, 200, 214.