Information Technology Copyright Issues - Common questions and answers

Copyright is protected in Australia by the Copyright Act 1968 (Cth).

That act, defines amongst other things, what may give rise to copyright, what is considered to be an infringement of copyright and the duration of copyright.

Ignorance of the law is no defence.

In most cases, the programmer of the computer program is the owner of any copyright subsisting in the computer program unless the work was done pursuant to the terms of his or her employment, in which case the employer owns the copyright.

You should consider having your employer assign the copyright to you if you wish to be able to use the copyright at a later date.

You are legally entitled to make a backup of an original computer program if you are the owner of an authorised copy of the program. This copy must be made only with the purpose of using the copy should the original copy be lost, destroyed or rendered unusable.

However, the owner of the copyright in the computer program may direct, no later than the time at which the you acquire the original copy, that you are not permitted to make a backup copy.

At no times are you permitted to make a backup copy of an infringing copy of a computer program.

The owner of the copyright may have the Comptroller-General seize any imported copies if making the copies in Australia would have constituted an infringement of the copyright.

The copies may be forfeited to the Commonwealth by the importer before any action for infringement is instituted.

The Comptroller-General must release the seized copies to the importer if an action for infringement of copyright is not commenced within the required time period

With respect to computer software, it is illegal to do the following:

• To lend software so that a copy can be made or to copy software while it is on loan.
• To run a software program on two or more computers simultaneously unless your licence agreement allows you to do so.
• To copy or distribute software or accompanying documentation without a licence or permission from the copyright owner.
• To compel, allow, encourage or request that employees make, use or distribute illegal copies of software.

Illegal copying of software may constitute a criminal offence and may expose the offender who may be an individual, a company, the directors of a company, a government body, an educational institution or another entity to fines and/or a prison sentence. Civil liability also applies.

A regular software audit should be made by employers of all software being used at their place of business. It is your responsibility to ensure that your software is correctly licensed.

Software developers should ensure that they have a written agreement which provides them with adequate protection with respect to copyright issues.

• An adequate description of the software and associated documentation
• Usage conditions
• The right for the user to copy the program and/or associated documentation
• Permission to modify or alter the program
• Reverse engineering
• The requirement that the user reports to the developer any infringement of copyright
• Sub-licences
• Maintenance/Warranty

It is prudent for both the current owner of the copyright and the licensee to have a written agreement. This avoids, amongst other things, any arguments as to the terms and conditions of the assignment of the copyright.

• It is cheaper if the software developer retains the intellectual property rights as the cost of development and maintenance can then be spread across multiple customers.
• It is not worthwhile for the software developer to have to supply different forks of the software for different customers and associated maintenance periods.
• The government guidelines do not currently require such an assignment. See for instance the Statement of Intellectual Property Principles for Australian Government Agencies
• It interferes with the resale value of the software developer's business if there is no underlying asset to sell.
• Escrow of the source code provides sufficient protection to the customer's need to be able to insure against the developer becoming insolvent or not supply appropriate maintenance services.

• The customer requires a competitive advantage to exclude others from using the software.
• The customer requires more flexibility in terms of licencing and access to source code.
• The customer needs to be able to get competitive pricing for the maintenance services from multiple vendors.
• The customer is proposing to spend very substantial sums on developing its own unique variant of the software