Apple Computer Inc. et al. v. Mackintosh Computers Ltd., (1990) 110 N.R. 66 (SCC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: Dickson, C.J.C., Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.
• Citation: (1990), 110 N.R. 66 (SCC),36 FTR 159,110 NR 66,30 CPR (3d) 257,1990 CanLII 119 (SCC),[1990] 2 SCR 209,71 DLR (4th) 95
• Date: 21 June 1990

Apple Computer v. Mackintosh Comp. (1990), 110 N.R. 66 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Mackintosh Computers Ltd., d'Electronique Repco Ltée/Repco Electronics Co. Ltd., Maison des Semiconducteurs Ltée/House of Semi-Conductors Ltd., Chico Levy and Nat Levy (appellants) v. Apple Computer Inc. (respondent) 115778 Canada Inc., carrying on business under the firm name and style of Microcom, James Begg and 131375 Canada Inc. (appellants) v. Apple Computer Inc. (respondent)

(20643, 20644)

Indexed As: Apple Computer Inc. et al. v. Mackintosh Computers Ltd.

Supreme Court of Canada

Dickson, C.J.C., Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.

June 21, 1990.

Summary:

Apple Computer Inc. manufactured computers and related products, including the Apple II+ computer. Apple owned a registered copyright in two computer programs known as Autostart ROM and Applesoft. These were operating system programs for the Apple II+ computer. The programs were originally written in a code of letters, symbols and figures, known as assembly language. The programs were then converted into the hexadecimal code, a shorthand version of the binary code, by which a computer is operated. These programs were then etched into the glass of a silicon chip, creating a machine-readable pattern which exactly duplicated the written binary code. Mackintosh Computers manufactured and sold Apple II+ "clones", i.e. machines which ran the same programs as Apple II+ computers. Mackintosh copied the Autostart ROM and Applesoft programs embodied in Apple's chips through a process called "burning". Apple commenced an action against Mackintosh for copyright infringement, seeking an injunction, an accounting of profits and delivery up of all infringing materials. The issue became whether a computer program, originating in copyrightable form, continues to be protected by copyright when it is replicated in the circuitry of a silicon chip.

The Federal Court of Canada, Trial Division, per Reed, J., in a decision reported 3 F.T.R. 118, allowed the infringement action, issued injunctions restraining further infringement and ordered that all infringing devices be delivered by Mackintosh to Apple. Mackintosh appealed.

The Federal Court of Appeal, in a decision reported 81 N.R. 3, dismissed the appeal. Mackintosh appealed.

The Supreme Court of Canada dismissed the appeal, affirming that Apple's programs embodied in the silicon chips were protected by copyright and any unauthorized copying of the programs constituted a violation of copyright.

Copyright - Topic 1025

Works subject to copyright - Computer programs - [See Copyright - Topic 4484].

Copyright - Topic 4484

Infringement - Acts constituting - Copying or using computer programs - Apple Computer had registered copyright in two written computer programs - The programs were written in letters, figures and symbols, known as assembly language - The programs were then converted into machine-readable form (i.e. hexadecimal code - a shorthand version of the binary code) and etched onto silicon chips - The Supreme Court of Canada held that the programs embodied in the chips were protected by the Copyright Act and any unauthorized copying of Apple's programs constituted a violation of copyright.

Cases Noticed:

Computer Edge Pty. Ltd. v. Apple Computer Inc. (1986), 65 A.L.R. 33, not folld. [paras. 13, 16].

Statutes Noticed:

Copyright Act, R.S.C. 1970, c. C-30, sect. 3(1) [paras. 9, 11]; sect. 3(1)(a) [paras. 9, 15]; sect. 3(1)(d) [paras. 9, 10, 12, 15].

Counsel:

Robert H.C. MacFarlane, for the appellants;

Alfred Schorr, Ivor Hughes and Joseph Etigson, for the respondent.

Solicitors of Record:

Fitzsimmons, MacFarlane, Toronto, Ontario, for the appellants;

Hughes, Etigson, Concord, Ontario, for the respondent.

This appeal was heard on February 26, 1990, before Dickson, C.J.C., Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada.

The decision of the court was delivered in both official languages on June 21, 1990, by Cory, J.: