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  • Steve Davey

If I use a small part of someone's computer code, is that still copyright infringement?

Updated: Sep 16, 2021

The case of IPC Global Pty Ltd v Pavetest Pty Ltd (No 4) [2017] FCA 260 (16 March 2017) shows that using even a small proportion of third party software without a licence could be copyright infringement.

IPC Global Pty Ltd (IPC) makes testing equipment for construction materials such as asphalt.

IPC uses software called IMACS and UTS.

In 2012 two employees of IPC left to start up a rival company called Pavetest.

At the time one of the employees resigned he had copies of the IPC's software on his computer.

He provided the software to a computer programmer to write Pavetest's own software called "TestLab."

IPC commenced proceedings against Pavetest and alleged that Pavetest infringed its copyright in the UTS and IMACS software and breached its confidentiality obligations with IPC.

Copyright in a work will be infringed if the work is reproduced in whole or in "substantial part" without a licence.

The UTS software program comprised approximately 250,000 lines of source code. However, only 800 lines of that code had been reproduced in the TestLab software.

Nevertheless, the court held that it is the quality, not the quantity of the code that determines whether it is "substantial."

The sections of code in question played a functionally significant role in the operation of the UTS software as a whole.

In addition, Pavetest contended that it had only copied parts of the UTS software system library which were merely "supporting infrastructure" to the main program.

Nonetheless, the Court considered that the UTS software had been reproduced in "substantial part".

The court made orders to permanently restrain Pavetest from offering to sell the TestLab software and requiring the delivery up or destruction of copies of the TestLab software.

The court also ordered that an inquiry be held to quantify the damages (including any additional damages) or, at IPC's election, to take an account of profits; and that Pavetest and the former employees pay IPC's costs of the legal proceedings.

The lesson is that software developers should be careful to ensure that they do not use existing code in developing their own software unless licences have been secured.

Companies that engage developers as contractors to create software should ensure there are warranties and indemnities in their software development agreements.

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