Case: Data Access Corp v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1
Outcome: applied
Emphasis on quality rather than quantity is further exemplified in more recent Australian authorities. In Data Access Corp v Powerflex Services Pty Ltd [1999] HCA 49 ; (1999) 202 CLR 1 at [32] , a majority of the High Court endorsed the views expressed by Mason CJ in dissent in Autodesk Inc v Dyason (No 2) [1993] HCA 6 ; (1993) 176 CLR 300 at 305. In that case, Mason CJ, citing Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 stated: Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that 'there is no copyright' in some unoriginal part of a whole that is copyright. As this statement makes clear, in determining whether the quality of what is taken makes it a 'substantial part' of the copyright work, it is important to inquire into the importance which the taken portion bears in relation to the work as a whole: is it an 'essential' or 'material' part of the work? ...in the context of copyright law, where emphasis is to be placed upon the 'originality' of the work's expression, the essential or material features of a work should be ascertained by considering the originality of the part allegedly taken. (Emphasis added) 23 While the High Court's holding in Powerflex applied to a computer program, the passage is of general application. In any event, a common thread in a case which involves computer programs and one which involves project homes, is that the copyright may overlap with functional considerations. 25 Reference to the essential or material features mirrors the language in Powerflex. The passages in both Powerflex and Tamawood are firmly grounded in Ladbroke . In that case, Lord Pearce stated in dictum: Whether a part is substantial must be decided by its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected . For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. It is this, I think, which is meant by one or two judicial observations that " there is no copyright " in some unoriginal part of a whole that is copyright. (Emphasis added) 26 In other words, if an unoriginal part of the whole is taken that does not represent a substantial part of the labour, skill and judgment of the author that made the whole work 'original', then there is no infringement: Powerflex at [32]. See also, Klissers Bakeries v Harvest Bakeries (1985) IPR 533 and Dixon Investments and Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172.