Comment on Apple Computer v. Mackintosh Computers
J. Fraser Mann*
The unique nature of computer technology
raises some fundamental questions for the
law of copyright. The author examines the
holding by the Federal Court, Trial Division
in Apple Computer, Inc. v. Mackintosh Com-
puters Ltd that the law of copyright can be
used to protect an operating system computer
program. The author compares the analysis
of the Court with that of the Australian High
Court in Computer Edge Pty Ltd v. Apple
Computer, Inc., which reached the opposite
result. The latter decision, he argues, is more
consistent with previous case law on the
meanings in the Copyright Act of “literary
work”, “translation” and “reproduction”. The
failure of the Canadian Apple Computer de-
cision to resolve these ambiguities demon-
strates the need for revisions to the Canadian
Copyright Act.
Le caract~re exceptionnel de la technologie
informatique soul~ve des questions fonda-
mentales pour le droit d’auteur. Ce commen-
taire concernela decision rendue par la Division
de premiere instance de Ia Cour ed~rale dans
‘affaire Apple Computer, Inc. c. Mackintosh
Computers Ltd, A ‘effet que le logiciel du sys-
tame d’exploitation est prot~g6 par la Loi sur
le droit d’auteur. I’auteur compare l’analyse
de Ia Cour avec celle de la Haute Cour d’Aus-
tralie dans Computer Edge Pty Ltd c. Apple
Computer, Inc., laquelle a rendu une dcision
contraire. Cette derni~re dcision serait, se-
Ion l’auteur, plus conforme A l’interpr~tation
que Ia jurisprudence ant6rieure avait donn6
aux termes oeuvre litt~raire ), <(traduc-
tion)> et <(reproduction>> de Ia Loi sur le droit
d’auteur. Ainsi, l’arr&t Apple Computer ca-
nadien, loin de solutionner ces ambiguits,
d~montre ]a n~cessit d’une r~forme de la Loi
sur le droit d’auteur.
The decision of Madam Justice Reed of the Federal Court, Trial Di-
vision, in the case of Apple Computer, Inc. v. Mackintosh Computers Ltd’
represents the first Canadian decision dealing in full with all the legal issues
raised by copyright protection for computer programs. It also represents
one of the most comprehensive examinations undertaken by a court in
Canada, and perhaps in any common law jurisdiction, of the basic nature
of the technology of computer programs. Accordingly, if the judgment is
upheld on appeal, it will serve as a significant contribution to the devel-
opment of computer and copyright law in Canada.
The plaintiffs asserted copyright in the original written assembly lan-
guage (or source code) versions 2 of their “Applesoft” and “Autostart ROM”
*Of Borden & Elliot, Toronto. Author of Computer Technology and the Law in Canada
(Toronto: Carswell, 1987).
1(1986), 28 D.L.R. (4th) 178, 10 C.P.R. (3d) 1 [hereinafterApple Computer cited to D.L.R.].
2As discussed by Reed J., computer programs may be originally written in either a “high
level” language, which has symbols and rules corresponding closely enough to mathematics
and English that they can be understood with relative ease, or in an “intermediate” or second
level of language, such as assembly language, which contains mnemonics corresponding more
closely to the operations performed by a computer, both the high level and assembly languages
can be properly described as “source code”.
McGILL LAW JOURNAL
[Vol. 32
operating system programs. They claimed that the hexadecimal (or object
code) versions of such programs, as they had been reproduced on silicon
chips by the defendants, were entitled to copyright protection as translations
of the original source code programs. The hexadecimal version of the pro-
gram consists of a notation based on a sixteen-digit alpha-numeric system. 3
This system can be reproduced on silicon chips by etching them in such a
way as to produce high and low voltage electrical states by virtue of which
the program “communicates” with the computer. This serves as a memory
of the program and is known as “ROM” (or “Read Only Memory”). Evi-
dence adduced by the plaintiffs indicated that the information encoded on
one of the chips sold by the defendants was almost identical in content and
location to the plaintiffs corresponding chip.
Reed J. rejected the defendant’s initial contention that there can be no
protection of programs under the Copyright Act4 as they are merely speci-
fications for a machine part. Instead, a program represents instructions to
the computer for moving information between registers and performing
operations; it is, in other words, an instruction manual addressed to the
central processing unit of a computer rather than to another human being.
The program retains this character as an instruction manual in the computer
since it can be read out of ROM and displayed on the screen of the monitor
or produced in a printout. It can also be converted to the original assembly
language version.
While noting that programs could be read out of ROM and are occa-
sionally so read by human beings for diagnostic purposes, Reed J. conceded
that this was not their primary purpose. Instead, programs are designed
primarily to be “communications” to a computer and are used to cause a
computer to perform certain operations. It was recognized that no other
form of written text operates in this way and that it stretches ordinary
conceptual notions of the nature of a written text to conceive of it as op-
erating in this fashion. This uniqueness was the essence of the dispute as
to whether copyright exists.
3The object code or “machine language” can be written in either binary notation which is
a number system using only two digits, 1 and 0, or in hexadecimal notation.
4S. 4(1) of the Copyright Act, R.S.C. 1970, c. C-30 provides that copyright subsists “in every
original literary, dramatic, musical and artistic work”. S. 2 of the Act defines “every original
literary, dramatic, musical and artistic work” to include “every original production in the
literary, scientific or artistic domain, whatever may be the mode or form of its expression”.
Notwithstanding this general language, it was held in the case of Cuisenaire v. South West
Imports Ltd (1967), [1968] 1 Ex. C.R. 493 at 507-13, 54 C.PR. 1, aff’d (1968), [1969] S.C.R.
208, that it was necessary to show that a work came within one of the specific categories set
out in the Act to be protected.
1987]
COMMJENTS
This characteristic of computer programs gave rise to the sole issue in
the case which was whether a computer program which originates in a
written text continues to be covered by copyright when it is converted into
its electrical code version or when it is embodied in a device designed to
replicate that code.5 The defendant made four arguments contending that
copyright protection does not extend in this fashion.
The first argument was that the conversion of a program from assembly
language to hexadecimal code was not a translation of the program, but a
different literary work. Reed J. cited the dictionary definition of “transla-
tion” as including to “express the sense of (word, sentence, speech, book
poem [sic]) in or into another language, in or to another form of represen-
tation.”‘ 6 Reed J. noted that an analogy could be made to the conversion
of a text into a Morse code. She found that the conversion of a work into
a code, or of a work written in one code to another code, constitutes a
“translation” for purposes of the Act. Accordingly, the hexadecimal version
of a program was not a different work from the original source program on
which it was based.
The second argument was that copyright does not extend to a computer
program embodied in a ROM chip because the program in such form con-
stitutes a merger of the idea and its expression. Reed J. seemed to contend
that if this argument were true, it should likewise follow that the written
assembly language version of the program would not be subject to copy-
right.7 She then questioned the scope, and even the existence, of any legal
rule that copyright ceases to exist when there is a merger of the idea with
its expression. Moreover, the evidence indicated that there was a multitude
of forms of expression in which any given program could be written.
5S. 3(1) of the Copyright Act provides as follows:
For the purposes of this Act, “copyright” means the sole right to produce or
reproduce the work or any substantial part thereof in any material form whatever,
to perform, or in the case of a lecture to deliver, the work or any substantial part
thereof in public; if the work is unpublished, to publish the work or any substantial
part thereof; and includes the sole right
(a) to produce, reproduce, perform or publish any translation of the work;
(d) in the case of a literary, dramatic, musical or artistic work, to make any record,
perforated roll, cinematograph film, or other contrivance by means of which the
work may be mechanically performed or delivered;
(f) in the case of any literary, dramatic, musical or artistic work, to communicate
such work by radiocommunication;
and to authorize any such acts as aforesaid.
6Apple Computer, supra, note I at 198.
7Ibid. at 201-2.
REVUE DE DROIT DE McGILL
[Vol. 32
Reed J. noted that the facts in Apple Computer could be distinguished
from those in certain Canadian and Australian cases in which physical
objects in question were held not to be types of works covered by the Act.8
These cases were found not to be applicable since the computer program
when written was clearly a literary work and its embodiment in a silicon
chip retained the form of expression of the original work. The program in
its source code version could be retrieved (or read out) in the form of a
print-out or on a monitor by a process of translation from the ROM chip.9
The third set of arguments considered by Reed J. related to the proper
interpretation to be given to subsection 3(1) of the Copyright Act and par-
ticularly the opening words of that provision giving a copyright owner “the
sole right to produce or reproduce the work … in any material form whatever
…”. Reed J. held that this phrase, which was based on the 1911 United
Kingdom Copyright Act, was purposely drafted to encompass new tech-
nologies developed after the Act was passed.’0 The section did away with
any requirement that in order to be covered by copyright, a reproduction
of the work had to be in a form which humans can read. This provision
also did away with any rule denying copyright protection to a work merely
because the copy or reproduction could be characterized as part of a machine.
Based on the foregoing, Reed J. held that the opening words of section
3 covered the plaintiffs program as embodied in the ROM chip since such
embodiment was the production or reproduction of the work in a material
form in the same way as a record or tape cassette. She noted that the
requirement of readability or appearance to the eye meant no more than
that there be a method by which a work in which copyright is claimed and
an alleged infringing work can be visually compared for the purpose of
determining whether copying has occurred. Since the programs in this case
could be read out of ROM and so compared, this requirement was met.
She cited various authorities to support the proposition that copyright may
be infringed even where that which is reproduced is in a different material
form from the original.”I
sCuisenairev. Reed(1962), [1963] V.R. 719, 5 EL.R. 180 (S.C. Victoria); Cuisenaire v. South
West Imports Ltd, supra, note 4.
9Apple Computer, supra, note 1 at 201.
0Ilbid. at 207.
“Chabot v. Davies (1936), [1936] 3 All E.R. 221, 155 L.T. 525 (Ch.) (a store front built from
plans); King Features Syndicate Inc. v. 0. and M. Kleeman Ltd (1941), [1941] A.C. 417, [1941]
2 All E.R. 403 (H.L.) (dolls based on a cartoon); Dorlingv. Honnor Marine Ltd (1963), [1965]
Ch. 1, [1964] 1 All E.R. 241 (C.A.) (boats from plans); Bayliner Marine Corp. v. Doral Boats
Ltd(1985), [1986] 3 EC. 346, 5 C.P.R. (3d) 289 (T.D.), rev’d on othergrounds (1986), 10 C.P.R.
(3d) 289 (A.D.) (boat parts from plans).
1987]
CHRONIQUE DE JURISPRUDENCE
Reed J. also rejected the argument that the programs were not entitled
to copyright protection because they were not intended for communication
to human beings. From the opening words of section 3, it was held that
there was no requirement that a work be used for such a purpose. The
various paragraphs of subsection 3(1) –
for example, paragraph l(d) re-
ferring to contrivances for the mechanical performance or delivery of the
should not be interpreted
work, such as acoustic or visual representation –
as limiting the opening words of that provision.
Reed J. also considered but rejected various public policy arguments
that were made for the contention that a program recorded in ROM should
not be protected by copyright. One such argument was that the Act should
not be interpreted as extending to such works on the grounds that to do so
would constitute the granting of a monopoly on an item of commerce. It
was noted, however, that the purpose of the Copyright Act is, and always
has been, to grant a monopoly. Reed J. also rejected the arguments that the
application of copyright to computer programs would usurp the function
of Parliament in view of various proposals made to amend the Copyright
Act, or that the defendants should not be penalized for acting as they did
when there was so much debate and uncertainty as to whether the legislation
extended to computer programs.
Based on the foregoing grounds, Reed J. found that both the corporate
defendants and the majority of individual defendants named in the action
were liable for copyright infringement.
The decision of Reed J. in Apple Computer represents a well-reasoned
application of basic principles of copyright law to the technology of com-
puter programs. At the same time the judgment raises important questions
as to the proper interpretation of certain provisions of the Copyright Act.
In considering the findings of Reed J., reference must be made to a
judgment rendered only one week later by the Australian High Court in the
case of Computer Edge Pty Ltd v. Apple Computer, Inc. 12 As in the Canadian
case, the Court was required to consider whether copyright in the respon-
dent’s “Autostart” and “Applesoft” operating system programs was infringed
by the reproduction of ROM chips embodying such programs. The statutory
provisions applied in that case were substantially similar to those considered
in the Canadian Apple Computer case since the cause of action arose prior
12(1986), 65 A.L.R. 33,6 I.PR. I (H.C. Australia) [hereinafter ComputerEdge cited to A.L.R.],
rev’g (1984), 53 A.L.R. 225, 2 I.PR. 1 (EC. Australia).
McGILL LAW JOURNAL
[Vol. 32
to amendments being made to the Australian Copyright Act in 1984 dealing
expressly with computer programs.’ 3
All five judges of the High Court expressed the view that computer
programs written in source code form were protected as literary works under
the Copyright Act. However, in separate concurring judgments, a majority
of the Court (Mason and Wilson JJ. dissenting) reversed the finding of the
full Federal Court and found that computer programs stored permanently
in ROM containing connected electrical circuits were not entitled to copy-
right protection. In reaching this conclusion, the Court found against the
respondents on each of three possible grounds on the basis of which it was
contended that the reproduction of programs embodied in ROM constituted
an infringement of copyright. These arguments were as follows:
–
the respondents’ programs as written in source code form were orig-
inal literary works, their object code programs were “adaptations” (or trans-
lations) of those source code programs and the appellants’ object code programs
as embodied in ROM were reproductions of those adaptations;
–
the respondents’ source code programs were original literary works
and the appellants’ object code programs were either adaptations or repro-
ductions of those source code programs;
–
the respondents’ object code programs, as embodied in ROM, were
themselves original literary works and the appellants’ object code programs
were reproductions of those literary works.
With respect to the last of these alternatives, the majority of the High
Court held that insofar as the object code programs embodied in ROM
existed either as a sequence of electrical impulses, or in the pattern of circuits
that when activated generated those impulses, they were not literary works.
In the words of Gibbs C.J.:
[The electrical impulses] were not visible or otherwise perceptible, and they
were not, and were not intended to be, capable by themselves of conveying a
meaning which could be understood by human beings. Obviously, the pattern
of the circuits in the ROMs also did not represent or reproduce any words or
figures, and were incapable of conveying any meaning.
13S. 3(a) of the Copyright Amendment Act 1984, Aust. Acts 1984, No. 43, now provides that
a computer program is a literary work. S. 3(b) of the Act defines a computer program as follows:
“computer program” means an expression, in any language, code or notation of
a set of instructions (whether with or without related information) intended, either
directly or after either or both of the following:
(a) conversion to another language, code or notation;
(b) reproduction in a different material form,
to cause a device having digital information processing capabilities to perform a
particular function ….
1987]
COMMENTS
It seems to me a complete distortion of meaning to describe electrical impulses
in a silicon chip, which cannot be perceived by the senses and are not intended
to convey any message to a human being and which do not represent words,
letters, figures or symbols as a literary work; still less can a pattern of circuits
be so described.14
The majority of the High Court also rejected the view that object code
programs embodied in ROMs were adaptations or translations of the source
code programs. It was noted that the source code programs were not turned
into another language (even into another computer language), but rather
were turned into electrical impulses. The secondary definition of a trans-
lation set forth in the Shorter Oxford English Dictionary as the “expression
or rendering of something in another medium or form” was a “transferred
and figurative use” of the word which did not come within the meaning of
a “translation” or “adaptation” for purposes of the Australian Copyright
Act.15 In any event, the object programs in ROM were not a translation of
the source code programs since they did not “express or render” them, but
were only a means of making the instructions written therein effective. Gibbs
C.J. noted further that an adaptation within the meaning of the Act must
itself be a work and that the object code programs in ROM were not works.
The High Court held further that the appellants’ object code programs
embodied in ROM were not reproductions of the respondents’ source code
programs since it was not possible to show any objective similarity between
the two works. The appellants’ ROMs embodied the ideas and logical struc-
ture of the respondents’ source programs, but, in the absence of any resem-
blance, did not reproduce the expressions of such ideas and logical structure.
It was noted by Brennan J. that it was not sufficient to show that the object
code programs were derived from the source programs since both derivation
and resemblance were essential to reproduction.
The contrast between the decision of Reed J. in Apple Computer and
the majority judgment of the Australian High Court in Computer Edge
demonstrates that notwithstanding the long history of copyright legislation,
certain fundamental issues concerning the interpretation of that legislation
remain unresolved. In particular, the essential meanings of such basic con-
cepts in both the Canadian and Australian Acts as a “literary work”, “trans-
lation” and a “reproduction” of a work “in a material form” remain uncertain.
On the question of the meaning of a “literary work” the Australian
High Court decision indicates that a literary work must be capable of being
seen or otherwise perceived and must be understood by human beings. By
4Computer Edge, supra, note 12 at 39-40.
1
’51bid. at 40.
REVUE DE DROIT DE McGILL
[Vol. 32
contrast, Reed J. indicated that there is no requirement of readability or
appearance as long as there is a method for comparing the work in which
copyright is claimed and the work which is alleged to infringe copyright.
Similarly, she indicated that there is no requirement that a work be intended
for communication between human beings.
It is difficult to reconcile the finding of Reed J. with respect to the
requirements of a literary work with other cases in which the concept of
such a work has been considered. In the oft-cited judgment of Peterson J.
in the case of University of London Press Ltd v. University Tutorial Press
Ltd, a literary work was described as a “work which is expressed in print
or writing, irrespective of the question whether the quality or style is high.”16
This test was cited with approval by the House of Lords in the case of
Ladbroke (Football) Ltd v. William Hill (Football) Ltd,’7 and recently by
the Federal Court of Canada in the case of Bulman Group Ltd v. “One-
Write” Accounting Systems Ltd.18 In addition, a literary work has been
defined as a work which is intended “to afford either information and in-
structions, or pleasure, in the form of literary enjoyment.”‘ 9 This test was
recently adopted by the English Court of Appeal in the case of Exxon Corp.
v. Exxon Insurance Consultants International Ltd.20 Such authorities are
consistent with the findings of the Australian High Court that a literary work
must be expressed in a perceptible form and must be intended for purposes
of communication to humans.
With respect to the concept of a “reproduction”, Apple Computer stands
for the proposition that there is no requirement that the reproduction have
any resemblance to the original work except to the extent that there be some
method by which the two can be compared to determine whether copying
has occurred. The Australian High Court in the Computer Edge case, on
the other hand, held that it is not sufficient to show that the reproduction
be derived from the original because the reproduction must also resemble
the original.
Again, it would seem difficult to reconcile the finding of Reed J. with
respect to the meaning of a reproduction with previous case law. In Francis
Day and Hunter Ltd v. Bron, Diplock L.J. (as he then was) held that the
two elements necessary in order for there to be an infringement of the
reproduction right were the following:
16(1916), [1916] 2 Ch. 601 at 608, 115 L.T. 301.
‘7(1964), [1964] 1 W.L.R. 273 at 285, [1964] 1 All E.R. 465.
18(1982), [1982] 2 EC. 327 at 331-32, 16 B.L.R. 16 (T.D.).
‘9nollinrake v. Truswell (1894), [1894] 3 Ch. 420 at 428, 71 L.T. 419 (C.A.).
20(1981), [1982] 1 Ch. I10 at 143, [1981] 3 W.L.R. 541 (C.A.).
1987]
CHRONIQUE DE JURISPRUDENCE
[F]irst, there must be sufficient objective similarity between the infringing work
and the copyright work, or a substantial part thereof, for the former to be
properly described, not necessarily as identical with, but as a reproduction or
adaptation of the latter; secondly, the copyright work must be the source from
which the infringing work is derived. 21
As was noted by Reed J. in Apple Computer, it has been held in several
English cases that a reproduction may be in a different material form in the
sense that it may be in different dimensions from the original. 22 More re-
cently, the House of Lords in the case of British Leyland Motor Corp. v.
Armstrong Patents Co. 23 held that the reproduction of motor vehicle parts,
such as mufflers, constitutes an indirect infringement of copyright in the
plans of such parts. However, the reproduction right could not be asserted
by a copyright owner in that case so as to deny the right of a car owner to
repair his vehicle by obtaining replacement parts from competing manu-
facturers. The House of Lords also noted that there was a clear visual re-
semblance which could be detected by a non-expert between the objects
which were reproduced and the plans of those objects.
It is not clear whether the concept of an indirect reproduction forms
part of the Canadian Copyright Act. In the case of Bayliner Marine Corp.
v. Doral Boats Ltd,24 the Federal Court of Appeal found that since designs
for boat parts served an ornamental purpose, they were capable of registra-
tion under the Industrial Design Act 25 and, accordingly, were not entitled
to copyright protection. The Court did not consider it necessary to determine
whether the decision of the House of Lords in the British Leyland case
applied in Canada. It noted, however, that there were significant differences
on this point between the Canadian and British industrial design and copy-
right legislation.
Notwithstanding any such differences, there is Canadian authority to
support the proposition that the similarity between an original and a re-
production must be detectable as a matter of visual resemblance. In Cuis-
enaire v. South West Imports Ltd,26 it was held that the production of
coloured rods made for teaching purposes did not constitute an infringement
of copyright in the written text in which such a teaching method was de-
scribed. In finding that copyright was not infringed in such circumstances,
Noel J. relied on the Australian case of Cuisenaire v. Reed27 which dealt
with a similar fact situation, and which distinguished the cases dealing with
2](1963), [1963] 1 Ch. 587 at 623, [1963] 2 All E.R. 16.
22See the cases cited supra, note 11.
23(1986), [1986] A.C. 577, [1986] 1 All E.R. 850 [hereinafter British Leyland].
24Supra, note 11.
25R.S.C. 1970, c. 1-8.
26Supra, note 4.
27Supra, note 8.
McGILL LAW JOURNAL
[Vol. 32
the reproduction of two-dimensional drawings in three-dimensional objects
on the grounds that in those cases there was a clear visual resemblance
between the alleged infringing article and the work in which copyright sub-
sisted, sufficient to warrant the conclusion that one had been copied from
the other. It appeared to be accepted in both Cuisenaire v. South West
Imports Ltd and Cuisenaire v. Reed that the similarity between the original
work and the infringing work had to be detectable as a matter of visual
resemblance, and there was no indication that it would be sufficient to show
a method for comparing the original and the reproduction.
The decisions in the Apple Computer and Computer Edge cases also
raise uncertainty as to the meaning of the concept of “translation”. In the
view of Reed J., a translation need not be in the same medium as the original
work and may include any form of representation of a literary work, at least
as long as there is a method by which the original work may be retrieved.
The majority of the Australian High Court, by contrast, gave a much more
restrictive interpretation to the concept of a translation. It was held in this
regard that reliance on the secondary meaning of a “translation”, namely,
the expression of a work in another medium, was precluded by the necessity
for an adaptation (including a translation) to be itself a literary work.
In Apple Computer, Reed J. did not consider expressly whether a version
of a computer program may be protected as a “translation” even if it does
not meet the requirements of a literary work. It would appear necessary to
satisfy such requirements in view of the decision in Cuisenaire v. South
West Imports Ltd28 in which it was held that a work must be shown to come
within one of the four categories referred to in section 2 of the Act, namely
“every original, literary, dramatic, musical and artistic work” in order to
be protected. Reference should also be made to the case of Pasickniak v.
Dojacek29 in which the court cited with approval a statement in Copinger
on the Law of Copyright that “[t]ranslations are also original literary works,
and consequently entitled to protection. ‘ 30 Apart from the cases dealing
with computer programs, there does not appear to be any Canadian case
in which the concept of a translation has been interpreted to include the
rendering of a literary work in a form in which it is not intended to be
perceived, read or otherwise understood by human beings.
The contrast between the Apple Computer and Computer Edge decisions
demonstrates the need for revisions to the Canadian Copyright Act to pro-
vide expressly for the protection of computer programs. Such revisions
28Supra, note 4.
29(1928), 37 Man. R. 265 at 271, [1928] 2 D.L.R. 545 (C.A.).
30EE.S. James, ed., Copinger on the Law of Copyright, 6th ed. (London: Sweet & Maxwell,
1927) at 53.
1987]
COMMENTS
should establish not only that a program in any form of expression is a
protected work, but also that the owner of copyright in a program has the
sole right to convert the program from one code to another, including that
in which it can be used directly by the computer. Such changes could be
made by extending the definition of a “literary work” to include computer
programs or by creating a new category of subject matter for such works.
Similarly, the meaning of a “reproduction in any material form” should be
clarified so as expressly to encompass the various forms in which a program
may be embodied or expressed.
Amendments such as the foregoing would bring the Canadian Copyright
Act into conformity with those of many other countries, including the United
States, the United Kingdom and Australia. All such countries considered it
necessary to amend their copyright laws to deal expressly with this new
technology. Such amendments would also be desirable from a public policy
perspective since the creation of computer programs requires considerable
skill, labour and effort which are deserving of statutory protection to en-
courage further creative activity and to stimulate technological development.
A number of reports and papers proposing amendments to the Copy-
right Act, including changes to deal with computer programs and related
subject matter, have been prepared by various Government Departments,
Task Forces and Parliamentary Sub-committees. On 10 October 1985, a
Parliamentary Sub-committee on the revision of copyright issued its report
entitled A Charter of Rights for Creators.31 The Report recommended that
computer programs be protected as a separate category of subject matter
under the Copyright Act and that protection be granted to computer pro-
grams of foreign nationals on a reciprocal basis. In February 1986, the Ca-
nadian Government issued its response to the Sub-committee’s Report.
While indicating that computer programs would be protected on the basis
of the “national treatment” principle (programs created by nationals of other
countries would be granted the same protection as those of Canadian cre-
ators) rather than on a reciprocal basis, the Government expressed its general
agreement with the proposals set out in the Report. Unfortunately, at the
tim6 of writing, no firm legislative changes have been introduced in Parlia-
ment and the timetable for the enactment of new legislation remains uncertain.
31Canada, House of Commons, Sub-committee of the Standing Committee on Communi-
cations and Culture on the Revision of Copyright, A Charter of Rights for Creators (Second
Report) (Hull, Que.: Supply & Services Canada, 1985) (Chair. G. Fontaine).
