Copyright and computer generated works

Under the current Copyright Act, as amended by the 1985 Copyright (Computer Software) Amendment Act, there is some doubt as to whether copyright subsists in a work which is generated by a computer. Although the 1985 amendment introduced that ‘material form’ was to include ‘references to the storage of that work in a computer’, the 1956 Act, at Section 2, requires there to be an author before copyright in a literary, artistic or musical work subsists. To my knowledge, the only case in which such issues have been considered in any way was the Express Newspapers Plc v Liverpool Daily Post & Echo Plc and others (FSR <1985> 306) in which the High Court (Mr Justice Whitford) ruled that ‘output from a computer that has been randomly generated by the machine itself is a copyright work’. The case arose out of the battles between the national newspapers in their lottery competition. The one in question was the ‘Millionaire of the month’ competition organised by the Daily Express which consisted of sequences of letters set out in a grid of five rows and five columns. The defendants argued that no copyright subsisted in the letters because they had been prepared by a computer, and consequently had no human author. In rejecting this argument, Mr Justice Whitford said that ‘the computer was no more than a tool with which the sequences and grids were produced using the instruction of the programmer’. He likened the defendants' argument to one which said that a pen was ‘the author’ of a written work. That was clearly not the case. Express Newspapers were entitled to an injunction. It is interesting to note that the decision was handed down by Mr Justice Whitford, presumably based upon the discussions he had chaired in producing the ‘Whitford Report’. Mr Justice Whitford said ‘that a great deal of skill and indeed, a good deal of labour went into the production of the grid and the two separate sequences of five letters’. The judge also came to the conclusion that a Mr Ertel, who was an employee of Amphora Enterprises Inc, an American Corporation who were contracted to Express Newspapers, did all the necessary operations to produce the sequences of letters. In particular the judge noted that Mr Ertel: