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Saphena Computing v Allied Collection Agencies
OR 25 April 1988

The plaintiffs were asked to develop a system to computerise the defendant's debt collection system. After the relationship broke down, the plaintiff sued for infringement of their copyright in the software created. The defendant claimed that the copyright had become theirs. They pointed out that although for certain sorts of copyright works, the 1956 Copyright Act had made explicit that copyright remained in the creator and was not transferred to the commissioner, there was no corresponding provision for literary works, and by the Copyright (Computer Software) Amendment Act 1985, computer software had been given the status of a literary work. The court started from the position that copyright had not vested in the commissioners.

It was clear that the software house always intended continue development of the system, and to sell further copies to other customers. The ordinary business requirements suggested they would not have assigned any copyright to the defendants. There was no explicit assignment of copyright, and moreover no beneficial equitable interest in it became theirs either.

There was no custom in the trade to suggest any obligation to supply source code. The standard was to deliver object code only.

The relationship ended before the system was complete, and source code was left at the defendant's premises. Although usable, the program required to be completed. They sought to make use of the source code in their possession to work to complete the program.

The judge held that when the relationship ended, the defendants had accepted the software in its condition at that time. There was no implied licence given to them to work further on the source code they retained.

The law upon which this decision was based has been superceded by the Copyright Designs and Patents Act 1988. The case remains illustrative of the dancing upon logical pinheads characteristic of practice in this area. The basic result would not be very different now. The software would remain the property of the author in the absence of any express assignment of copyright. See also lawindexpro casemap

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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 423 18 October 2013