Technology IP and IT Dispute Lawyers Adelaide: Code, Patents, Confidentiality and Claims
Technology IP and IT disputes in South Australia
Code, data and know-how are often the most valuable things a technology business owns, and the easiest to lose through a missing assignment or a loose confidentiality clause. Talon Legal advises Adelaide technology businesses on owning and protecting their IP, and acts in disputes when a technology relationship breaks down. Book a same-day free 30-minute consultation or call (08) 7094 2021.
Technology IP and IT dispute key facts
| Issue | Position in South Australia |
|---|---|
| Copyright in software | A computer program is a literary work (Copyright Act 1968 (Cth) section 10(1)). Copyright subsists in an original work once it is made, if the author is a qualified person; the Act has no registration step (section 32). |
| Who owns it | The author (section 35(2)), or the employer for work done under a contract of service (section 35(6)). An assignment has no effect unless in writing signed by or for the assignor (section 196(3)). |
| Infringement | Doing, or authorising, an act comprised in the copyright without the owner's licence (section 36(1)). |
| Rights a licence cannot remove | An agreement that excludes or limits the exceptions for back-up copies, interoperability, error correction, security testing and part of the normal use or study exception has no effect (section 47H). |
| Computer-generated material | Needs a human author. Program-generated works with no person directing their form were held not to be original (Telstra v Phone Directories at [118], [169]; Acohs v Ucorp at [57] to [58]). |
| Software patents | The invention must be a manner of manufacture, novel, inventive and useful (Patents Act 1990 (Cth) section 18(1)). The test is whether the subject matter is an abstract idea manipulated on a computer, or one implemented to produce an artificial state of affairs and a useful result (Aristocrat [2025] FCAFC 131 at [131]). |
| Confidential information | Equity protects information identified with specificity, with the quality of confidence, received in circumstances importing an obligation of confidence, against actual or threatened misuse (Optus Networks v Telstra at [39]). |
| NDAs and equity | A contractual definition of confidential information does not by itself exclude equitable obligations of confidence (Optus Networks v Telstra at [29]). |
| Promises in a failed project | A representation about a future matter without reasonable grounds is taken to be misleading (Australian Consumer Law section 4(1)); loss from misleading conduct is recoverable as damages (sections 18 and 236). |
| Time limits | Six years for contract and tort claims (Limitation of Actions Act 1936 (SA) section 35) and ACL damages claims (section 236(2)). |
| Which court | The Magistrates Court hears money claims up to $100,000, and claims of $12,000 or less as small claims (Magistrates Court Act 1991 (SA) sections 3 and 8). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Need a technology IP lawyer in Adelaide?
Our technology IP lawyers in Adelaide work on ownership of software, data and designs, on confidentiality, and on the disputes that follow when a development, licence or services relationship fails. The Copyright Act 1968 (Cth) and the Patents Act 1990 (Cth) decide what can be owned. Equity protects confidential information. The Australian Consumer Law (ACL) in Schedule 2 of the Competition and Consumer Act 2010 (Cth) supplies the claim for misleading conduct that runs through most failed project disputes. This page states the law current to 24 October 2026.
This guide is part of our information technology law practice. Related guides cover software development agreements, software licences and SaaS agreements, IT services and support agreements and data protection and privacy.
For rights in books and e-books, see our guide to book and e-book publishing agreements.
For copyright in AI-generated text, images and code, and for AI systems named as inventors, see our guide to AI-generated content and copyright.
Free Consultation. If a dispute has started, or a former developer or employee has your code, call before you write to them. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- Who owns the copyright in software?
- What can users do that a licence cannot prevent?
- Is computer-generated or AI-assisted code protected?
- Can software be patented?
- How is confidential information protected?
- What claims arise when an IT project fails?
- What are the time limits, and which court?
- How similar matters tend to play out
- How we act on technology IP and disputes
- Case law
- Frequently asked questions
Who owns the copyright in software?
The author, unless the Act or a written document says otherwise. A computer program is a literary work, defined as a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result (section 10(1)). Copyright subsists in an original literary work once it is made, where the author is a qualified person (section 32(1)), and the author owns it (section 35(2)).
Employment and assignment change the owner. Code written by an employee in pursuance of the terms of their employment under a contract of service belongs to the employer (section 35(6)). Code written by a contractor stays with the contractor unless it is assigned, and an assignment has no effect unless it is in writing signed by or on behalf of the assignor (section 196(3)). A signed agreement assigning future copyright vests it in the assignee as the work comes into existence (section 197(1)).
Infringement is doing, or authorising, an act comprised in the copyright without the owner’s licence (section 36(1)). That is why ownership matters in a dispute: a business that does not own its code, and has only a vague licence, may be infringing when it modifies, copies or sells the software it paid for.
Copyright in music, film and other creative work is covered in the media and entertainment guides, including music licensing, sync and composer agreements.
What can users do that a licence cannot prevent?
The Copyright Act gives lawful users of computer programs some rights that cannot be removed by contract. Sections 47B to 47F create exceptions for normal use or study of programs, back-up copies, reproducing a program to make interoperable products, correcting errors, and security testing.
An agreement, or a provision of an agreement, that excludes or limits section 47B(3), 47C, 47D, 47E or 47F, or has that effect, has no effect (section 47H). Each exception has its own conditions, so whether a particular act is covered needs checking against the section. But a licence term that tries to ban back-up copies or security testing outright will not be enforced to that extent.
Is computer-generated or AI-assisted code protected?
Only to the extent a human author directed its form. The Full Federal Court has twice held that material generated by the operation of a program was not an original work.
In Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149, copyright did not subsist in directories produced largely by automated processes. Perram J said the author of a computer-generated work will ordinarily be the person controlling the program, so long as that person directs or fashions its material form; an operator who does not control that form is not its author ([118]). Yates J said the computer-generated process was of such overwhelming significance that the works could not be characterised as originating from authors ([169]).
In Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16, the claimed works were the source code of documents a software system generated ([50]). The source code was created by the operation of the program on material users entered. It did not emanate from authors and was not an original work ([57] to [58]).
Neither case concerned AI tools. The question for AI-assisted code is the same question of fact and degree ([169]): did a person direct or fashion the material form, or did the tool? A business that relies on copyright in its code should keep records of how it was written.
Patent law takes a similar line on inventors. In Commissioner of Patents v Thaler [2022] FCAFC 62, a five judge Full Court held that only a natural person can be an inventor for the purposes of the Patents Act and Regulations ([113]). An application naming an AI system as the inventor did not comply with the Regulations ([117]).
Can software be patented?
Sometimes. A standard patent requires an invention that, so far as claimed, is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies, is novel and inventive compared with the prior art, is useful, and was not secretly used before the priority date (Patents Act section 18(1)).
Computer-implemented inventions turn on the first requirement. In Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131, the Full Court said it is too rigid and narrow to hold that implementing an idea on a computer, using conventional computer technology for its well-known functions, can never be a manner of manufacture ([131]). The better question is whether, properly characterised, the subject matter is an abstract idea manipulated on a computer, or an abstract idea implemented on a computer to produce an artificial state of affairs and a useful result ([131]). The gaming machine claims in that case passed ([135] to [136]).
The same decision said the earlier Full Court cases rejecting computer-implemented business schemes reached the correct results, because each used a machine to manipulate an abstract idea ([132]). One of them was Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2019] FCAFC 161, where method claims for searching and displaying business information were no more than an instruction to apply an abstract idea using generic computer technology ([99]). The difference between the two lines of cases is the difference between a technical result and a business method run on a computer.
How is confidential information protected?
By contract, and by equity alongside it. In Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21, the Full Court set out the four elements of a claim for breach of confidence in equity. The information must be identified with specificity. It must have the necessary quality of confidence. It must have been received in circumstances importing an obligation of confidence. And there must be actual or threatened misuse without consent ([39]).
A non-disclosure agreement does not necessarily replace those obligations. In Optus, the parties’ agreement defined confidential information exhaustively, but the Full Court held that did not show an intention to exclude equitable obligations; the parties had simply codified what was confidential for the purposes of their contract ([29]). The agreement preserved equitable rights, and the Court saw no reason why parties could not agree that a party could elect between damages for breach of contract and an account of profits ([37]). The appeal was allowed and judgment entered for Optus on its claim in equity (orders).
For a technology business, the practical lessons are specificity and records. A claim fails if the information cannot be identified with specificity, so source code, algorithms, customer data and roadmaps should be marked, access-controlled and listed in the agreement.
What claims arise when an IT project fails?
Usually several at once. The contract claim depends on what was promised: the specification, the acceptance criteria, the timetable and the warranties. A consumer customer also has the statutory guarantees of due care and skill and fitness for a disclosed purpose (ACL sections 60 and 61), which cannot be excluded (section 64).
Misleading conduct is often the strongest claim. Misleading or deceptive conduct in trade or commerce is prohibited (section 18), and a representation about a future matter, such as a delivery date or a capability, is taken to be misleading if the person had no reasonable grounds for it (section 4(1)). A person who suffers loss because of a contravention may recover it by action against the person who contravened, or anyone involved in the contravention (section 236(1)).
The defences come from the contract. A limitation or exclusion clause is construed by its natural and ordinary meaning, read in light of the contract as a whole, and against the party relying on it where appropriate in case of ambiguity (Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 at [16]). Dispute clauses matter too. In AIBI Holdings Pty Ltd v Virtual Technology Services Pty Ltd [2022] FCA 696, a customer that withheld disputed payments without activating the contract’s dispute process remained liable to pay, and the supplier was entitled to suspend services ([137] to [140]).
What are the time limits, and which court?
A claim founded on contract or tort must be started within six years after the cause of action accrued (Limitation of Actions Act 1936 (SA) section 35). An ACL damages claim must be started within six years after the day the cause of action accrued (section 236(2)). A claim under the statutory privacy tort has a much shorter limit, covered in our data protection and privacy guide.
The Magistrates Court of South Australia hears claims for a sum of money up to $100,000, and the parties can waive that limit (Magistrates Court Act 1991 (SA) section 8). Monetary claims of $12,000 or less are small claims, dealt with as minor civil actions (section 3). Larger claims go to the higher courts.
How similar matters tend to play out
Three illustrations of how the law on this page combines on ordinary facts. They are not predictions. Outcome depends on the documents, the evidence and the court.
Lower range. A former contractor demands a further fee before handing over the source code of an app the business paid for. With no written assignment, the contractor owns the copyright (section 196(3)). The usual resolution is a negotiated assignment, with the payment history and any implied terms of the engagement as the business’s leverage.
Middle range. A departing employee takes a copy of the employer’s customer database and pricing model to a competitor. The employer owns copyright in work done under the employment (section 35(6)), and the information is protected in equity if it can be identified with specificity and has the quality of confidence (Optus at [39]). Urgent injunctive relief may be needed before it is used.
Upper range. A business pays $400,000 for a system that never works. The vendor said in its pitch that the product already did what the business needed. The business sues for breach of contract and for damages for misleading conduct (sections 18, 4(1) and 236), and the vendor relies on a liability cap of three months’ fees, which the court will read for what it says (Darlington at [16]).
How we act on technology IP and disputes
As technology IP lawyers, we start with the documents: who wrote what, under which agreement, and what was signed. In a dispute, we then follow the contract’s dispute clause, preserve the evidence and protect the limitation period.
| Stage | What happens | What we do |
|---|---|---|
| Audit | The business wants to know what it owns. | Trace the code, data and designs to their authors and agreements, and fix gaps with assignments. |
| Protection | The business shares information with staff, contractors or partners. | Draft confidentiality and IP terms, and the records that make them enforceable. |
| Dispute notice | A party alleges breach, infringement or misuse. | Assess ownership, the confidence claim, the contract and the ACL claims, and follow the dispute clause. |
| Urgent relief | Code or information is about to be used or disclosed. | Seek undertakings or injunctions to hold the position. |
| Resolution | The dispute settles or goes to court. | Negotiate assignments and settlements, or run the claim in the court that fits it. |
We cannot promise an outcome, and no lawyer can. We can make sure the business knows what it owns and what it can prove before the other side tests it.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Technology IP and dispute case law
Telstra, Acohs, Encompass, Aristocrat and Thaler concerned software, computer-generated works or AI. Optus concerned confidential information shared under a commercial agreement, and AIBI an IT services dispute. Darlington came to the High Court from South Australia.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149 | Full Federal Court | Computer-generated works need a human author | [118], [169] |
| Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16 | Full Federal Court | Program-generated source code not an original work | [50], [57], [58] |
| Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131 | Full Federal Court | Current test for computer-implemented inventions | [5], [131], [132], [135], [136] |
| Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2019] FCAFC 161 | Full Federal Court | Abstract idea on generic computers not patentable (result upheld in Aristocrat) | [99] |
| Commissioner of Patents v Thaler [2022] FCAFC 62 | Full Federal Court | Only a natural person can be an inventor | [113], [117] |
| Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21 | Full Federal Court | Elements of breach of confidence; contract does not exclude equity | [29], [37], [39] |
| AIBI Holdings Pty Ltd v Virtual Technology Services Pty Ltd [2022] FCA 696 | Federal Court | Dispute clauses, withheld payments and suspension | [137] to [140] |
| Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 | High Court | Construction of exclusion and limitation clauses | [16], [19] |
Case notes
Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149
The appeal was dismissed: copyright did not subsist in directories produced largely by automated processes. Perram J said an operator who does not control the material form a program produces is not its author ([118]). Yates J said the computer-generated process was of such overwhelming significance that the works did not originate from authors ([169]).
Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16
The claimed works were the source code of documents rendered by a software system ([50]). The Full Court agreed with the primary judge that the source code was created by the program, did not emanate from authors, and was not an original work ([57] to [58]).
Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2025] FCAFC 131
Following an equally divided High Court in 2022 ([5]), the Full Court adopted the test of whether the subject matter is an abstract idea manipulated on a computer or one implemented to produce an artificial state of affairs and a useful result ([131]). It held the remaining gaming machine claims were a manner of manufacture ([136]) and allowed the appeal. It said the earlier Full Court results, including Encompass, were correct ([132]).
Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2019] FCAFC 161
A five judge Full Court dismissed the appeal. The method claims for retrieving and displaying business information were no more than an instruction to apply an abstract idea using generic computer technology ([99]). Aristocrat later qualified the generic implementation formulation but said this result was correct.
Commissioner of Patents v Thaler [2022] FCAFC 62
An application named an AI system as the inventor. A five judge Full Court allowed the Commissioner’s appeal, holding that only a natural person can be an inventor for the purposes of the Patents Act and Regulations ([113]), so the application did not comply with the Regulations ([117]).
Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21
An exhaustive contractual definition of confidential information did not exclude equitable obligations of confidence ([29]). The agreement preserved equitable remedies, allowing an election between contract damages and an account of profits ([37]). The Full Court stated the four elements of breach of confidence in equity ([39]) and entered judgment for Optus on its equitable claim.
AIBI Holdings Pty Ltd v Virtual Technology Services Pty Ltd [2022] FCA 696
A customer withheld disputed payments without activating the dispute resolution mechanism, so the invoices were payable ([137] to [139]). The supplier did not breach the contract by suspending its helpdesk ([140]).
Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82
An appeal from South Australia. Exclusion and limitation clauses are construed by their natural and ordinary meaning in light of the whole contract, and against the party relying on them where appropriate in case of ambiguity ([16]). A $100 limit applied to each unauthorised contract ([19]).
Frequently asked questions
Does software have to be registered to get copyright?
No. A computer program is a literary work (Copyright Act section 10(1)), and copyright subsists in an original work once it is made, where the author is a qualified person (section 32). The Act sets no registration step.
Who owns code written by a contractor?
The contractor, unless copyright has been assigned in writing signed by or on behalf of the contractor (sections 35(2) and 196(3)). Payment alone does not transfer it.
Can a licence stop users making back-up copies?
Not effectively. An agreement that excludes or limits the back-up copy exception in section 47C, or the exceptions in sections 47B(3), 47D, 47E and 47F, has no effect to that extent (section 47H).
Is AI-generated code protected by copyright?
Only to the extent a human directed its material form. Program-generated works have been held not to be original works (Telstra v Phone Directories at [118]; Acohs v Ucorp at [57] to [58]), but neither case concerned AI tools.
Can an AI system be named as an inventor?
No. Only a natural person can be an inventor for the purposes of the Patents Act and Regulations (Commissioner of Patents v Thaler [2022] FCAFC 62 at [113]).
Can software be patented in Australia?
Sometimes. The question is whether the subject matter is an abstract idea manipulated on a computer, or one implemented on a computer to produce an artificial state of affairs and a useful result (Aristocrat [2025] FCAFC 131 at [131]). Business methods run on generic computers have been refused (Encompass at [99]).
What makes information confidential in law?
It must be identified with specificity, have the quality of confidence, and have been received in circumstances importing an obligation of confidence. A claim also needs actual or threatened misuse without consent (Optus Networks v Telstra at [39]).
Does an NDA replace the general law of confidence?
Not necessarily. A contractual definition of confidential information does not by itself exclude equitable obligations of confidence (Optus Networks v Telstra at [29]).
Can a business sue a vendor for overpromising?
Often. A representation about a future matter made without reasonable grounds is taken to be misleading (ACL section 4(1)), and loss caused by misleading conduct can be recovered as damages (sections 18 and 236(1)).
How long is there to sue over a failed IT project?
Generally six years after the cause of action accrued, for contract and tort claims (Limitation of Actions Act 1936 (SA) section 35) and ACL damages claims (section 236(2)).
Which court hears an IT dispute in South Australia?
The Magistrates Court hears money claims up to $100,000, with claims of $12,000 or less treated as small claims (Magistrates Court Act 1991 (SA) sections 3 and 8). Larger claims go to the higher courts.
Do I need a technology IP lawyer?
Before a sale, an investment or a dispute, yes. A technology IP lawyer can confirm what the business owns, close the gaps and protect its position. A free 30-minute consultation will tell you where you stand.
Related IP and technology guides
Related guides
- Information technology lawyers Adelaide
- Software development agreements
- Software licences and SaaS agreements
- IT services and support agreements
- Data protection and privacy
- Website development agreements
- Website content and copyright
- Web and digital contractor agreements
- Artificial intelligence
- Litigation and dispute resolution
- Commercial and business law