Copyright in computer programs

28 March 2018

The recent New South Wales Supreme Court decision in EIFY Systems Pty Ltd v 3D Safety Services Pty Ltd [2017] NSWSC 1310 (EIFY v 3D) has reaffirmed the application of Australian copyright law as set out in the Copyright Act 1968 (the Act) to computer programs.

EIFY Systems Pty Ltd (EIFY) provided an online induction program (eInduct) which qualified personnel to work on particular sites. In 2011 EIFY and 3D Safety Services Pty Ltd (3D) entered a joint venture (JV) to provide online training and management systems to construction and mining clients. The JV was unsuccessful and short lived. By 2012 3D had begun developing its own online induction program which resembled EIFY’s product in terms of its function, structure, and organisation. EIFY sued 3D and its directors for breach of copyright.


EIFY’s claim failed. The Court found that EIFY’s claim to copyright, whilst giving the impression of a degree of particularity, in fact encompassed the whole of the eInduct system. The result was a claim to protect a combination of know-how (which is not protected) and information that may or may not have been confidential to EIFY. EIFY was further unable to establish that a duty of confidence between itself and 3D existed.

Who is bound by a computer program’s Terms of Use?

3D’s directors had been given access to the eInduct system during the JV, accepting the Terms of Use as part of the registration process. EIFY claimed this gave rise to a contractual duty of confidence that bound both the directors and 3D. Reviewing the eInduct Terms of Use, the Court found they were directed at regulating the basis on which individuals interacted with the system. As there was no express acknowledgement that people accessing the site would accept the terms on behalf of their employer, 3D was not bound.1 The directors were bound but had not breached the contractual duty of confidence arising from the terms of use.

What elements of computer programs are copyright?
  • The source and object code; and
  • Elements such as images, video, and text.

The source and object code of a computer program are protected under section 21(5) of the Act. The Defendants acknowledged the confidentiality of the eInduct program code. 3D, however, had not copied the code to produce their program; there was no evidence that 3D or its directors had ever even had access to the eInduct code.

There were various iterations of the online induction prepared by EIFY for different clients. The information and images used in these inductions was often supplied by the client, with additional images sourced by EIFY from a third party. The Court held that where images or text were not created by EIFY copyright belonged to the party that had supplied the material.2

What elements of computer programs are not protected by copyright?
  • The functionality of a program; and
  • The stand alone ‘look and feel’ of a program.

EIFY claimed copyright in the order and arrangement of the eInduct webpages, their layout, format, and look. They further claimed protection for the overall arrangement of text and images on the webpages, as opposed to the images and text themselves, as in most cases EIFY did not create these.3

Australian authority holds that there is no copyright in the stand alone ‘look and feel’ of a computer program.4 The Court found EIFY’s claim conflated the eInduct system as a whole with the code that underpinned the system. Copyright can subsist in the latter, but not in the former.

Assignment of Copyright

The case also provides a salient reminder that the right to sue for a breach of copyright is separate to the copyright itself. In any assignment of copyright, the right to sue for past breaches must also be assigned if the assignee wishes to enforce it.5 In 2015 EIFY was assigned copyright to the images created for the eInduct system by the third party. On reviewing the assignment, the Judge found it did not assign EIFY the right to sue for a breach of copyright occurring before the assignment took place. EIFY’s claim based on the use of the images by 3D in 2012 therefore failed.


Copyright protection protects the constituent elements of a computer program. Neither the functionality of a program, nor its visual interface (look and feel, to the extent this is separate from the text and audiovisual components of the interface), are protected. The source and object code used to run the program and elements such as images and text are protected. Producing a computer program which replicates the functionality of an existing program will not be a breach of copyright provided the underlying code is not copied. Where elements such as images and text are used which are not the creation of the program developer, copyright in these elements will generally rest with the author.

This article was written by Luke Dale, Partner and Katherine O’Brien, Law Graduate.

Luke Dale
P: +61 8 8205 0580


1EIFY Systems Pty Ltd v 3D Safety Services Pty Ltd [2017] NSWSC 1310 [325].
2EIFY Systems Pty Ltd v 3D Safety Services Pty Ltd [2017] NSWSC 1310 [336].
3 EIFY Systems Pty Ltd v 3D Safety Services Pty Ltd [2017] NSWSC 1310 [14].
4StatusCard Australia Pty Ltd v Rotondo [2009] 1 Qd R 559.
5SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd (No 2) (2012) 211 FCR 563. 

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