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Thursday, 7 June 1984
Page: 2742

Senator GARETH EVANS (Attorney-General)(12.36) —No undertaking has been given publicly or privately by the Government that this legislation will not proceed. It was a matter of the Government considering very carefully just what the effect of that judgment was. There was an indication by me when the judgment came down that we were deferring the immediate introduction of the Bill that had been previously foreshadowed but there was certainly no undertaking not to introduce legislation at all. The reality is that close study of the decision showed that although the immediate issue had been resolved there were still a number of matters of acute concern to the computer industry that had not been addressed by the Full Bench of the Federal Court of Australia or on which the Full Bench of the Federal Court had divided. Accordingly, with the lodging of an appeal to the High Court of Australia, bearing in mind that division of opinion, there is very real continuing uncertainty in the industry. Against that background we made the decision that we have.

Perhaps the best way of explaining the limitations in terms of scope of the Full Court of the Federal Court decision is by my seeking leave to incorporate in Hansard a brief table which indicates the provisions in the Bill by reference to how they were dealt with in the appeal in the Apple case demonstrating, I think quite clearly and succinctly, just how many matters the Bill addresses and needed to address for the sake of removing uncertainties that were not in fact dealt with, for one reason or another, in the decision and, accordingly, which justifies rather swift legislative intervention of the kind we are now making. I seek leave to incorporate that table in Hansard.

Leave granted.

The table read as follows-

Apple Computer v Computer Edge


Provision in Bill

How issue dealt with in Apple appeal

S.3 (b)-''computer program'' defined

No definitive treatment of concept of computer program, though much explanation.

S.3 (f)-definition of ''literary work'' to be amended-

to remove requirement for visible form in respect of tables and compilations;

Not addressed. Apparent existing requirement for fixation in writing in case of compilations may be important to databases built up from contributions of many authors.

to include computer programs, whether in source code or object code;

All 3 judges held that source code was proper matter for protection as an original literary work Two judges did not think it necessary to decide whether object code might of itself be protected as an original literary work, whilst the third found that object code was not so protected. (But see 'adaptation' below).

to include a compilation of computer programs

Not addressed. There may accordingly be doubt as to whether a computer program which is an arrangement of existing subroutines, in itself qualifies for protection.

S.3 (a)-''adaptation'', in relation to a computer program, defined to include translations between computer source and object languages.

By a majority of 2:1 the Court held that object code was an adaptation of source code.

S.3 (c) and (e)-''infringing copy'' re-defined-

to remove anomaly that article imported with permission might technically be an infringing copy.

Not addressed.

to ensure that copies of adaptations are covered.

Not addressed.

S.3 (g)-''material form'' defined. The concept has relevance both to the '' making'' or fixation of original works, and to the making of reproductions of works.

The majority judges regarded embodiment of the Apple object programs in Wombat ROM's as embodiment in a material form. The reasoning used would appear to apply equally to ''material form'' in the context of fixation.

S.4-Presumption created that making of back-up copy permitted.

Not a matter considered by Court.

S.5-Transmission of program by telephone deemed to be ''supply'' for purposes of existing S.132.

Not considered by Court. Such result not likely to be achieved judicially.

S.6-New offence of advertising supply created, and transmission deemed to be '' supply''.

Not a matter for Court.

S.7-Transitional provisions to confer copyright protection on existing programs, but make clear acts done prior to amendments not thereby to be infringements.

Copyright already applies to computer programs, hence now clear that past acts were infringements and copies created are infringing copies.