Aztech Systems Pte Ltd v Creative Technology Ltd

JurisdictionSingapore
Judgment Date24 October 1995
Date24 October 1995
Docket NumberSuit No 688 of 1993
CourtHigh Court (Singapore)
Aztech Systems Pte Ltd
Plaintiff
and
Creative Technology Ltd
Defendant

[1995] SGHC 294

Lim Teong Qwee JC

Suit No 688 of 1993

High Court

Copyright–Infringement–Computer source code–Defendant developer of sound cards containing source code–Plaintiff investigating compatibility with defendant's sound cards–Plaintiff developing sound cards compatible with all sound standards including those belonging to defendant–Whether plaintiff infringing defendant's copyright in firmware and software when investigating Sound Blaster compatibility and developing sound cards–Copyright–Infringement–Defence of fair dealing for purposes of private study–Defendant developer of sound cards bundled with software–Plaintiff investigating compatibility with defendant's sound cards–Plaintiff copying defendant's software in the course of investigations–Whether defence inapplicable due to commercial nature of investigations–Whether defence inapplicable due to research nature of plaintiff's study–Whether public interest served by copying complained of–Section 35 Copyright Act (Cap 63, 1988 Rev Ed)

The defendant (“Creative”) was a developer of the “Sound Blaster” family of sound cards, and had used the Intel 80C51 chip (“the chip”) in one of its sound cards. Creative had written a source code for a program, and had stored this on the chip's read-only memory (“ROM”) (“the firmware program”). To prevent the firmware from being reproduced from the chip, Creative had directed Intel and Maatra, the manufacturers of the chip, to install security arrangements on the chip. The firmware was programmed to respond to commands from application programs, including specialised programs designed to communicate with sound cards. Creative bundled its sound card with some software including TEST-SBC, as well as a driver (“CT-VOICE.DRV”). The latter could be embedded in the application, thus doing away with the need for an external driver.

The plaintiff (“Aztech”) was a developer of the “Sound Galaxy” family of sound cards, and had successfully produced sound cards which were compatible with the sound standards used by the industry, including that associated with Creative's Sound Blaster sound card.

Creative sued Aztech. Creative alleged that in investigating Sound Blaster compatibility, and in developing its Sound Blaster compatible cards, Aztech had infringed Creative's copyright in the firmware as well as its software TEST-SBC and CT-VOICE.DRV.

Aztech took the position that it had developed its program independently and without access to the source code of Creative's Program. It thus denied any infringement. In any event, Aztech claimed that it was entitled to rely on the defence of fair dealing for the purpose of private study.

Held, dismissing the defendants' claim:

(1) On the evidence, it was highly improbable that Aztech had gained access to the object code or the source code of the firmware in any of Creative's sound cards by dumping it by the visual optical method or by repairing the fuse. It was equally improbable that Aztech had gained access by dumping it from an unprotected chip. It was more likely that the firmware program was developed without access to the source code of Creative's program. Accordingly, Aztech could not and did not copy Creative's firmware program: at [15].

(2) There was no doubt that Aztech had copied Creative's TEST-SBC program in the course of its investigations into Creative's sound card. This was because Aztech, in order to run the program, had to download the program to the PC, ie copy it to its memory. However, there was no or insufficient evidence that CT-VOICE.DRV or any other software program had been similarly copied by disassembly or in the course of such investigations: at [45].

(3) Aztech's copying of Creative's TEST-SBC program was permitted by the defence in s 35 of the Copyright Act (Cap 63, 1988 Rev Ed). For this defence to operate, the defendant's infringing act must satisfy two elements: firstly, the act must be done for the purpose of “research or private study”. Secondly, it must constitute “fair dealing”: at [49].

(4) On the first element in s 35, Aztech had established that its dealing was for the purpose of “private study”. The fact that the Aztech staff in the R&D department might have been engaged in research did not rule out the possibility that the purpose might also have been “study”. Further, a study was “private” if the study and the information acquired through it were kept or removed from public knowledge and observation, and this was so even though the purpose may be of a commercial nature. The commercial nature of the purpose was a matter to be taken into consideration along with others, and it did not follow that the defence would be excluded in every case where the purpose of the copying could be categorised as being of a commercial nature: at [50], [51]and [58].

(5) On the second element in s 35, Aztech had established that its dealing with the TEST-SBC program constituted “fair dealing”. In this assessment, the commercial nature of the purpose was an important factor against a dealing for that purpose being considered fair. However, on the facts, the product that had been developed and marketed by Aztech was the sound card, rather than a software program that emulated the TEST-SBC program or the instructions in it. Aztech had merely run the TEST-SBC program to study it in order to develop a compatible sound card. No part of the program had been copied in the sound card. As such, the effect of the commercial nature of the purpose had been substantially mitigated. Further, Aztech's development of a Sound Blaster compatible sound card was beneficial to both end users and the industry. On balance, the public interest had thus been served by the copying complained of: at [54] and [57].

(6) The principle in Betts v Willmott (1871) LR 6 Ch App 239 was of general application and not limited to patent cases. Having bought a Sound Blaster sound card together with TEST-SBC, Aztech was entitled in the exercise of its rights of ownership over it to use it by running it with the program DEBUG to study its mode of operation with a view to designing a Sound Blaster compatible sound card: at [70], [71] and [87].

[Observation: The defence of “non-derogation from grant” was inapplicable for two reasons. First, Creative had merely given an option to its grantees (ie, the software developers) to develop software with the embedded driver. Its grantees were therefore free to exercise the option or not as they pleased. Second, by exercising its copyright, Creative was not preventing anything granted by it from being repaired: at [69].]

Ager v Peninsular and Oriental Steam Navigation Company (1884) 26 Ch D 637 (refd)

American Geophysical Union v Texaco Inc (1994) 29 IPR 381 (refd)

Badische Anilin und Soda Fabrik v Isler [1906] 1 Ch 605 (refd)

Betts v Willmott (1871) LR 6 Ch App 239 (folld)

British Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd [1986] AC 577 (distd)

National Phonograph Company of Australia, Limited v Walter T Menck [1911] AC 336 (refd)

PP v Teo Ai Nee [1993] 3 SLR (R) 755; [1994] 1 SLR 452 (refd)

Roberts v Candiware Ltd [1980] FSR 352 (refd)

Sega Enterprises Ltd v Accolade Inc977 F 2d 1510 (9th Cir, 1992) (refd)

Television Broadcasts Ltd v Golden Line Video & Marketing Pte Ltd [1988] 2 SLR (R) 388; [1988] SLR 930 (refd)

Time-Life International (Nederlands) BV v Interstate Parcel Express Co Pty Ltd [1978] FSR 251 (refd)

Waterlow Directories Ltd v Reed Information Services Ltd [1992] FSR 409 (refd)

Copyright Act (Cap 63,1988 Rev Ed)s 35 (consd);ss 25 (3),32, 33,39, 40

Copyright Act1968 (Cth)ss 37, 38

Copyright Act 17 USC (US) 107 (1988)

Peter Prescott QC and Ng Soon Kai (Chong & Ng) for the plaintiff

Kevin Garnett QC, Morris John and Lim Yee Ming (Drew & Napier) for the defendant.

Judgment reserved.

Lim Teong Qwee JC

1 Creative developed the “Sound Blaster” family of sound cards and has marketed these very successfully. It is today the world market leader for sound cards. The Creative sound card is an “add on” circuit board that can be easily plugged onto the motherboard of an IBM compatible personal computer (“PC”) such as may be found in many offices and homes in Singapore and elsewhere. It generates sound through a speaker system by means of a digital signal processor (“DSP”) and a digital-to-analog converter (“DAC”) which converts data from the DSP which is in a digital representation to an analog representation. For the DSP Creative uses a chip made by or under licence from Intel Corp known as the Intel 80C51. The Intel 80C51 is a chip in the Intel 8051 series and since it has been referred to as the Intel 8051 in these proceedings I shall refer to it as such in this judgment. Sound is also generated by means of a frequency modulation (“FM”) synthesiser which is not concerned in these proceedings. All these devices are built into the circuit board. When an application such as a game program running in the PC requires sound it sends commands to a software program in a driver which acts as an interface. The driver converts the commands into low level commands which it sends to the DSP. The DSP interprets the commands and sends data to the DAC. The DAC converts the data into sound through the speaker system. Creative bundles its sound card with some amount of software including TEST-SBC and the driver which is called CT-VOICE.DRV. The driver can also be embedded in the application thus doing away with the need for an external driver.

2 The Intel 8051 is an 8-bit chip with 128 bytes of random-access memory (“RAM”) and 4 kilobytes (4,096 bytes) of read-only memory (“ROM”). It has an arithmetic and logic unit that performs the operations for which it is designed and a number of registers or temporary storage areas for data. One of these registers is identified as “A” and it is in this register that the...

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