The Applicant alleged that Mr Petro (formerly an employee of the Applicant) had, amongst other claims, infringed copyright in one of its computer programs. Mr Petro while in the employ of the Applicant was involved to some extent in the production of a Content Management System (CMS).  A CMS is a set of computer files stored on a server that allows a person who may not have substantial IT knowledge to edit a website and install additional content or amend existing content without needing to make use of a scripting language such as HTML.

Mr Petro had left the employ of the Applicant and developed websites for other companies.  In the course of this activity he accessed certain websites of his former employer and downloaded certain files that were part of the CMS developed by the Applicant, but he could not remember which of the sites he downloaded them from.

The Applicant alleged that the two files were downloaded from a site upon which was the HR Advantage CMS.  Mr Petro was able to download the files by guessing the URLs.  They were not password protected but were not readily accessible to the public without some inside knowledge and/or some luck.

The Applicant made a number of arguments in relation to the copyright, including that each file copied was a computer program in its own right. Under the Copyright Act a computer program is a defined as “a set of statements or instructions that can be used directly or indirectly in a computer in order to bring about a certain result”.  The court found that each file was a set of instructions, with the result that each was a work capable of copyright protection.

Ultimately, in spite of the conclusion that individual files can be regarded as computer programs for the purposes of copyright protection, the court found that there was not in fact a breach of copyright, as the Applicant was unable to prove that any of the websites it owned contained the exact same code used by Mr Petro.

However, what this case does highlight is that works which may previously have been considered too “insignificant” for copyright protection, may in fact be capable of attracting protection under the Act.

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