Ramly Ali J

Enclosure 3 is an application by the plaintiff for an interlocutory injunction prohibiting the defendants from infringing the second plaintiff’s copyright in the QnE Software.

The plaintiff’s claim against the defendants are as follows:

(a)infringement of the second plaintiff’s copyright in the QnE Software;

(b)breach of duty of confidentiality to the plaintiffs;

(c)breach of the employment agreement by the second defendant;

(d)breach of fiduciary duty by the third defendant.

The principles governing the grant of an interlocutory injunction were laid down by Lord Diplock in the House of Lords in the case of American Cyanamid v Ethicon Ltd

(a)there are serious issues to be tried;

(b)damages will not be an adequate compensation; and

(c)balance of convenience favours the grant of the injunction.

The above principles have been adopted by the Court of Appeal in Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors

INFRINGEMENT OF THE SECOND PLAINTIFF’S COPYRIGHT IN THE QnE SOFTWARE

The plaintiff’s QnE Software is an accounting software specially designed for use by a person with minimal accounting background. The objective of the QnE Software is to bypass the in depth knowledge required to manage the financial affairs of a business and the day to day financial administration and reporting of a business. In the QnE Software, the plaintiff’s assert the following features which are protected under copyright:

(a)the computer program comprising the literal elements being the source codes;

(b)the computer program comprising the non-literal elements being the structure, modularity, architecture and design features of the QnE Software; and

(c)the user interface of the program (what appears on the screen display when the program is run).

Computer program is protected as a literary work under the Copyright Act 1987. Under s 3Copyright Act 1987, ‘literary work’ includes ‘computer program’. The case of Creative Purpose Sdn Bhd & Anor v Integrated Trans Corp Sdn Bhd & Ors

The English cases are instructive on the issue of copyright protection and infringement of computer programs as our laws are similar. In the English case of Ibcos Computers Ltd & Anor v Barclays Mercantile Highland Finance Ltd & Ors Ibcos Computers, Jacob J held at p 302 that:

I thoroughly agree with what Ferris J (in the John Richardson case) went on to say: ‘Consideration is not restricted to the text of the code …’. That must be right: most literary copyright works involve both literal matters (the exact words of a novel or a computer program) and varying levels of abstraction (plot, more or less details of a novel, general structure of a computer program).

I therefore think it right to have regard in this case not only to what Mr Turner (the plaintiffs’ expert) called ‘literal similarities’ but also to what he called ‘program structure’ and ‘design features’.

In respect of the user interface and the design of screen display of a computer program, they are protected as ‘artistic works’ under our Copyright Act 1987. Section 3 of the Actdefines ‘artistic work’ as including ‘a graphic work, photograph, irrespective of the artistic quality’.

In the present case the plaintiff has shown prima facie proof of ownership and subsistence of copyright. The plaintiffs’ affirmed in para 13 of the plaintiffs’ first affidavit facts which are required to be in compliance with s 42Copyright Act 1987. These facts are namely that:

(a)copyright subsists in the literary and artistic works of the QnE Software;

(b)copyright subsists in the QnE Software at all material times after the first publication of the QnE Software on or around 2001 (in the original version and all subsequent revisions thereof);

(c)the second plaintiff is the owner of the copyright; and

(d)copies of the QnE Software are annexed in the statutory declaration in exh ‘SML-6’ of the plaintiffs’ first affidavit.

Section 42 of the Actprovides that an affidavit made in accordance with the provisions of sub-s (1) of the sectionshall be ad