This case concerned ownership of copyright in software.
The issue was whether Intelmail Explorenet (the first applicant) owned copyright in software written by Vardanian (the first respondent) or, in the alternative, it had an implied licence to use the works for the purpose of the ongoing conduct of the business.
The respondents accepted that Intelmail Explorenet was a licensee but disputed the terms of the licence propounded by the applicants.
Moore J construed the implied terms of the (non-express) employment agreements. In doing so, the judge considered the nature of the relationship between the first respondent and the second applicant, their strong cultural ties, and the fact that the first respondent had contributed significantly to the second applicant’s business.
Moore J found that in those circumstances, it was unlikely that either party would have agreed to an arrangement that would have put at risk the prosperity of the business. It was held that:
a term should be implied into the first agreement (entered into at the point when the first respondent ceased to be an employee of Intelmail Australia) that Intelmail Australia would retain the equitable ownership of copyright in any programs written by the first respondent from the time he ceased to be an employee, this term being necessary for the “reasonable and effective” operation of the contract; and
there was no basis for the proposition that the term in that agreement would have changed at the point that a second contract arose.