The foundation of all computer programs and software is source code. Source code is a humanly readable set of instructions which directs a computer to perform certain functions. The protection afforded to source code and digital products created from source code by the Copyright Act 1968 is far from certain. The uncertainty is predominantly created by difficulties in determining whether the source code is an original artistic work as that phrase is defined in the Copyright Act 1968, and if so who is the author of the source code. For a business that creates digital products the level of protection can have a significant impact for the business if the author of the source code for a digital product is indeterminable or there are multiple authors who work exclusively to create one of the multiple parts of a product. These issues were recently canvassed by Justice Jessup of the Federal Court of Australia in Acohs Pty Ltd v Ucorp Pty Ltd  FCA 577.
Acohs is in the business of producing Material Safety Data Sheets (Data Sheets) which are information sheets containing safety information about hazardous chemicals. The Data Sheets are produced by inputting data about a hazardous chemical into a software interface called 'Infosafe Systems', which then generates source code that is interpreted by the computer to produce an individual Data Sheet. In that sense, every Data Sheet holds a unique source code generated by the Infosafe System. In an effort to protect its Data Sheets from being copied by Ucorp, Acohs claimed copyright in the source code for each Data Sheet and the Data Sheets themselves.
In pursuing its claim Acohs encountered two major difficulties:
Original literary work
Justice Jessup found that source code 'consists of words, letters, numbers and symbols which are intelligible to someone skilled in the relevant area, and which convey meaning' and is thus a literary work within the meaning of the Copyright Act 1968. The more difficult question is whether the source code is an original literary work.
Acohs contended that the source code becomes a literary work when it is first reduced to a material form. The point of time this was said to occur was when the transcriber, being the person that inputs the data into the Infosafe System, has completed inputting the data about the hazardous chemical into the Infosafe System and checked the appearance of the resulting Data Sheet on his or her screen. The problem with this interpretation is that the source code is not written by a person, but is generated by the Infosafe System.
Acohs sought to overcome this problem by arguing that the Infosafe System is no more than a tool, such as a pen is no more than a tool to an author who writes a piece of work. Justice Jessup did not accept that argument stating 'it is not as though the transcribers… having in mind the source code they desired to write, used the computer to that end. They were not computer programmers, and there is no suggestion that they understood source code or ever had a perception of the body of source code which was relevant to the Data Sheets on which they worked'. In that sense, the Infosafe System was far more than a mere tool.
On that basis the source code was found not to be an original literary work.
At this point, it is relevant to note that the Data Sheets were found to constitute original literary works. However, Acohs was unable to properly identify the author of the Data Sheets to give rise to copyright protection.
Defining the author
Acohs' case was one of joint authorship, of both the source code and the Data Sheets, between the computer programmers who created the Infosafe System and the transcribers.
The case for joint authorship of the source code was rejected on the ground that it was an artificial concept that the computer programmers and the transcribers collaborated with each other in the writing of the source code. They made their respective contributions, but were quite separate in what they did. The programmers wrote the program which caused the Infosafe System to generate the source code, and the transcribers input data to affect the layout, appearances and attributes of the Data Sheet. Further, the transcribers had no understanding of the technical task upon which the programmers had been engaged.
Acohs' claim of joint authorship of the Data Sheets was rejected on two grounds. Firstly those programmers could not in any way be considered authors of the Data Sheets. The programmers simply wrote the Infosafe Systems software which in turn created the source code and the Data Sheets. The programmers did not make any contribution to the content of the Data Sheets. The second ground was the same as reasons in respect of the source code - there was no collaboration between the transcribers and the programmers to create the Data Sheets. They each had their individual role.
What are the implications of Acohs?
The Acohs decision may have widespread ramifications for businesses that create digital products such as Data Sheets, inventory recording systems, data interpretation software etc. The decision will affect businesses’ ability to protect digital products under the provisions of the Copyright Act. It will be common that businesses have several, if not teams of people working together to create a piece of software or as in the Acohs decision, a piece of software which in turn creates a product. If the source code of that software is not itself the product, or is not written by persons who can be defined as the “author” for the purposes of the Copyright Act 1968, the source code may not fall within the Act’s protective provisions.
The means of addressing these issues will be different in each case. In some cases express licence provisions or a deed of assignment of rights may assist. In others the process of authorship itself may need to be considered. Businesses may want to consider what means can be implemented to give certainty to defining the author and in the case of multiple authors the level of collaboration that is required to fall within the provisions of the Copyright Act 1968.