The court established that liability for copyright infringement exists even if unauthorized use is by employees, rejecting claims of abuse of process when genuine grievances are addressed.

[After full trial]

Introduction

[1] In a nutshell, this action by the Plaintiff ("Bentley") against the Defendant ("PUSBE") is for copyright infringement. PUSBE's counterclaim against Bentley as pleaded at first glance is, however, not one that can easily be fitted into a nutshell of the usual categories of causes of action. Push come to shove to put a name on it, I would say it is for damages against Bentley for the very bringing of this copyright infringement action against it. In simple terms, PUSBE says that Bentley's action against it is an abuse of process.

Copyright Infringement

[2] In a second nutshell, a successful action for copyright infringement consists of two essential elements, namely establishing the copyright and then establishing the infringement of it.

[3] The first element is not really in dispute here. Bentley, a US-based software development company, develops, manufactures and distribute computer software for numerous industries worldwide, including the design, construction, and infrastructure industries.

[4] The software in issue here is an offshore structural analysis software that it calls as SACS Connect Edition ("SACS Computer Programs") (note the American spelling). SACS Computer Programs come in various versions (the latest being Version 16) and contain the Bentley's copyrighted language, codes or notations ("Works"). It is used and utilised by offshore engineers and structural engineers to design, analyse, and simulate the response of, inter alia, offshore platforms The SACS Computer Programs come with various integrated modules that were developed and designed to carry out different functionalities, and include SACS Offshore Structure, SACS Pile Structure Design and SACS Fatigue.

[5] PUSBE does not really dispute Bentley's copyright in the SACS Computer Programs It pleaded in paras 14.1, 14.2 and 14.3 of its Amended Defence and Counterclaim:

"Petrokon Utama Sendirian Berhad (Petrokon) is a multi-discipline engineering consultancy established in Brunei Darussalam since January 1984. Petrokon provides design engineering and project management services to the oil and gas, petrochemical and construction industries.

Petrokon owns a 30% stake in the Defendant's issued share capital, thereby establishing its affiliation within Petrokon1s consortium of corporate entities ("the Consortium''). As a member of the Consortium, the Defendant and Petrokon co-work on projects awarded to Petrokon and vice versa.

Petrokon has subscribed for the ensuing software applications from the Plaintiff:

(a) SACS Offshore Structure Ult. SELECT Sub

(b) SACS Pile Structure Design SELECT Sub

(c) Bentley AutoPIPE Advanced SELECT Subs (d) Structural WorkSuite SELECT Subscription

(hereinafter collectively referred to as "the Software")."

The part that Petrokon fits into the narrative of PUSBE's defence and counterclaim will be looked at in due course.

[6] That concession by PUSBE is probably due to pragmatism, all the more because of the Statutory Declaration that Bentley adduced under s 42(1) of the Copyright Act, 1987 ("Act"), which provides:

"42. Affidavit admissible in evidence

(1) An affidavit or statutory declaration made before any person having authority to administer oath by or on behalf of any person claiming to be:

(a) The owner of the copyright in any works eligible for copyright under this Act stating that:

(i) at the time specified therein copyright subsisted in such work;

(ii) he or the person named therein is