Last Updated on 13/08/2025 by Damin Murdock
Nowadays, software is often the foundation of business innovation and competitive advantage. For Australian developers, tech startups, and established enterprises, understanding and actively safeguarding their software under the Australian copyright law is critical. At Leo Lawyers, we help our clients build robust legal frameworks to protect their code and secure their intellectual property.
Is Your Software Protected by Copyright in Australia?
Under Australian copyright law, software is expressly recognised and protected as a literary work. This fundamental protection extends to both the source code (the human-readable programming language) and the object code (the machine-readable compiled version), provided the work is original.
This position has been consistently affirmed by Australian courts, with significant precedents set in landmark cases such as Computer Edge Pty Ltd v Apple Computer Inc [1986] HCA 19 and Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58.
These decisions underscore the legal foundation for software copyright in Australia.
Understanding the Scope: What Does Copyright Actually Protect?
In Australia, the law draws a distinction between the “expression” of a program and its underlying ideas or core functionality. This difference is important when you are evaluating potential infringement or drafting licensing agreements.
This distinction was reinforced by the High Court in Autodesk Inc v Dyason (No 2) [1993] HCA 6, which clarified that for copyright to apply, the “set of instructions” must be clearly identifiable and original.
What copyright protects
- The unique arrangement and selection of instructions within the human-readable programming language, which is the source code that is about how the code is written
- The compiled, machine-readable version directly derived from the source code which is the object code, or the look and feel for instance the layout of a dashboard within a platform.
What copyright does not protect
- Copyright safeguards the expression of an idea, not the idea itself. For instance, the idea of a social media platform is not protected by copyright, but the specific code used to build a particular platform is
- How a program works or its functional output generally is not protected by copyright. Instead, protection is limited to the specific, original way that functionality is implemented in the code.
Best Practices for Comprehensive Software Copyright Protection
Effective legal protection for your software extends beyond the act of writing code. Developers and businesses must adopt deliberate, proactive strategies to establish, document, and enforce their copyright.
1. Maintain Documentation
Thorough record-keeping is your first line of defence. You should document the original source code with a clear development timeline detailing significant milestones and versions, details of authorship, contributions from all developers involved, and all ownership or licensing arrangements related to the code. As illustrated in Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd [2021] FCA 809, extensive documentation was required to establish that they did not authorise copyright infringement by failing to enforce their rights, or being ‘indifferent’ to the infringement occurring.
2. Implement Technical Safeguards
Many technologies have technological protection measures and anti-piracy technology imbedded to prevent unauthorised copying to deter misuse. Consider employing key-and-code protection measures, password-based restrictions, product activation mechanisms, hardware authentication tools or trackers within your technology. These measures, recognised as valid protection tools which was used in Kabushiki Kaisha Sony Computer Entertainment v Stevens [2003] FCAFC 157 to protect against “mod-chips” being used can significantly bolster your copyright protection strategy.
3. Secure Your Legal Rights Proactively
Minimise risk and pre-empt disputes by ensuring all developers and contractors assign their copyright in the code to your business through written agreements, and affix clear and prominent copyright notices to your code and software interfaces (e.g., “© [Year] [Your Company Name]. All Rights Reserved.”). This protects against the “innocent infringer defence”. It is also important to understand the legal test for infringement, which typically involves identifying the copyrighted work, the material allegedly copied, and demonstrating that the copying is substantial.
Enforcing Your Copyright: What Happens If Infringement Occurs?
Should your software copyright be infringed, Australian courts possess broad powers to provide remedies. These may include not only compensatory damages (to recover losses suffered due to the infringement) but also additional damages (intended to deter repeated or deliberate infringement) and account for profits (to disgorge the infringers profits away for yourself).
The Evolving Legal Landscape: Beyond Copyright
While copyright offers significant protection, it may not encompass every aspect of your software innovation, particularly for abstract methods or algorithms. As technology rapidly evolves, so too does the legal landscape. In some cases, it is prudent to explore additional layers of intellectual property protection, such as patents, or the use of trade secrets by keeping your algorithms or specific business know-how a secret.
Conclusion
Australian copyright law offers a robust protection for software but knowing its limits requires a clear understanding of its scope and limitations. By integrating legal, technical, and administrative strategies, developers and businesses can strengthen their position, mitigate legal risks, and ensure their intellectual property is secure.
At Leo Lawyers, we are dedicated to assisting software developers, innovative startups, and established technology companies in protecting their software and digital assets across Australia. Feel free to contact Damin Murdock at Leo Lawyers via our website, on (02) 8201 0051 or at office@leolawyers.com.au. Further, if you liked this article, please subscribe to our social media accounts.
DISCLAIMER: This is not legal advice and is general information only. You should not rely upon the information contained in this article and if you require specific legal advice, please contact us.
Damin Murdock (J.D | LL.M | BACS - Finance) is a seasoned commercial lawyer with over 17 years of experience, recognised as a trusted legal advisor and courtroom advocate who has built a formidable reputation for delivering strategic legal solutions across corporate, commercial, construction, and technology law. He has held senior leadership positions, including director of a national Australian law firm, principal lawyer of MurdockCheng Legal Practice, and Chief Legal Officer of Lawpath, Australia's largest legal technology platform. Throughout his career, Damin has personally advised more than 2,000 startups and SMEs, earning over 300 five-star reviews from satisfied clients who value his clear communication, commercial pragmatism, and in-depth legal knowledge. As an established legal thought leader, he has hosted over 100 webinars and legal videos that have attracted tens of thousands of views, reinforcing his trusted authority in both legal and business communities."
