Information Technology Copyright Issues

An Expert's View about Sourcing in Australia

Posted on: 23 Jul 2010

INFORMATION TECHNOLOGY COPYRIGHT ISSUES: COMMON QUESTIONS AND ANSWERS

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

WHO OWNS THE COPYRIGHT IN A COMPUTER PROGRAM?

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.

CAN YOU MAKE BACKUP COPIES OF COMPUTER PROGRAMS?

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.

IMPORTATION OF ORIGINAL COPIES OF COPYRIGHT WORKS INTO AUSTRALIA

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

WHICH ACTS ARE ILLEGAL?

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.

WHAT ARE THE PENALTIES?

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.

WHAT COPYRIGHT ISSUES SHOULD DEVELOPERS CONSIDER?

Software developers should ensure that they have a written software licence which provides them with adequate protection with respect to copyright issues. Does your software licence include these issues?

  • An adequate description of the licensed program 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

HAVE YOU CONSIDERED LICENSING YOUR PROGRAM TO ANOTHER PARTY?

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 confusion as to the terms and conditions of the assignment of the copyright.

Is your legal documentation up to date and checked by a lawyer?

This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquires and seek appropriate legal advice.


Useful links:

  • Original article : Click here for the original article and others like it by White SW Computer Law.
Posted: 23 July 2010

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