A Leading Canadian IP Case: Copyright for Computer Software

Apple Computer Inc v Mackintosh Computers Ltd, [1987] 1 FC 173 (TD), aff’d [1988] 1 FC 673 (CA), aff’d [1990] 2 SCR 209

We see relatively few cases in Canada dealing with computer software and hardware issues but the Apple Computer case was one of the more important cases that made it to trial, was appealed to the Federal Court of Appeal ([1988] 1 FC 673), then finally to the Supreme Court of Canada ([1990] 2 SCR 209). Although higher level court decisions tend to garner more attention than those of lower courts, and although the Copyright Act was amended soon after this decision, Madam Justice Reed’s Federal Court (trial level) decision continues to be cited even today because of her considered reasons about the scope of copyright and how the law should interact with new technologies (such as in the cases here and here, respectively in 2006 and 2012).

Apple Computer (Apple) had registered copyrights in Autostart ROM and Applesoft, two operating system programs. These programs were originally written in assembly language, an intermediate level of computer language between a language such as BASIC (which is relatively easy for humans to read) and machine code (what the computer “understands” but which is relatively difficult for humans to read). The programs were converted into machine code, and then etched onto silicon chips as a physical, binary pattern which “instructed” the computer how to carry out the program as an “electrical code”.

The defendants, including Mackintosh Computers (Mackintosh), made copies of these silicon chips (which now included the Autostart ROM and Applesoft programs in a physical form) by “burning” (copying the physical binary patterns).

Apple sued for copyright infringement of its programs. Mackintosh argued that the electrical code versions of the programs (embodied in a device) were not eligible to be protected by copyright.

Madam Justice Barbara Reed, the trial judge, extensively reviewed the technical aspects of computer technology and software and found in favour of Apple. In her view, because section 3 of the pre-1988 Copyright Act provided that copyright covered the work “in any material form whatever”, copyright “clearly covers the program as embodied in the ROM chip. To find otherwise … would require reading words into section 3 of the Copyright Act which are not there.” Madam Justice Reed’s decision was affirmed by unanimous panels of both the Federal Court of Appeal and the Supreme Court of Canada.

After this decision, the Copyright Act was amended to explicitly include computer programs within the definition of a “literary work”.

Amy-Lynne Williams notes the legacy of this decision:

“Before this trial decision, in Canada it was not clear whether the machine readable chip format of a computer program was protected by copyright or was merely part of the hardware and not protectable as a literary work. This case has always stayed in my mind, not only because Madam Justice Reed did such a masterful job of explaining how computer software programs are created and showed that a Canadian judge really understood what was involved in software creation, but because her decision was the catalyst for the amendment to the Copyright Act that put the arguments to rest.”

Summary by: Cheryl Cheung

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