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This Digest was prepared for debate. It reflects the legislation as
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CONTENTS
Glossary
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details
compilation
|
the process whereby a program written in a high
level language is converted into equivalent instructions in machine
code or object code.
|
decompilation
|
the working back from the object code of a
computer program to a version of the source code. This process may
involve a substantial recreation or reproduction of the source code
of the original program. Decompilation is achieved using a computer
program called a decompiler.
|
high level language
|
a programming language designed to suit the
requirements of a programmer. It is independent of the internal
machine code of any particular computer. High level languages are
relatively easy to learn because the instructions bear a close
resemblance to everyday language, and because the programmer does
not require a detailed knowledge of the internal workings of the
computer. Each instruction in a high level language is equivalent
to several machine code instructions. However, each high level
instruction must be translated into machine code, by either a
compiler or an interpreter program, before it can be executed by a
computer. High level languages are portable. Programs written in a
high level language can be run on any computer that has a compiler
or interpreter for that particular language. Some examples of high
level languages are VISUAL BASIC, DELPHI, and PASCAL.
|
interoperability
|
the ability of computer systems to exchange
information and mutually to use the information which has been
exchanged.
|
interpretation
|
the process whereby a source code is translated
'on the run' one instruction at a time into machine code or object
code.
|
machine code
|
a class of computer languages which can be
interpreted directly by computers (machines) without a translation
process.
|
object code
|
the class of computer programs expressed in
machine code which contain additional information necessary to
ensure correct loading of the program.
|
reverse engineering
|
the study or analysis of a computer product
(including a computer program) in order to reveal the underlying
idea or principle on which it operates. This analysis may include
an examination of relevant published documentation, study of the
operation of the product and, in the case of computer programs,
their decompilation.
|
source code
|
the class of computer languages expressed in
human readable form and which allow a human programmer to work with
instructions rather than binary or hexadecimal numbers. It is the
code in which a programmer writes, prior to the program being
compiled.
|
[These definitions are compiled from the
following dictionaries:
Collins dictionary of personal
computing, 2nd ed., by Ian Sinclair, Glasgow, HarperCollins,
1997.
The dictionary of multimedia: terms and
acronyms, by Brad Hansen, Wilsonville, Oregon, Franklin,
Beedle & Associates, 1997.
The Hutchinson dictionary of computing,
multimedia, and the Internet, Oxford, Helicon, 1997.]
Copyright Amendment (Computer Programs) Bill
1999
Date Introduced: 21 April 1999
House: Senate
Portfolio: Communications, Information Technology and the
Arts
Commencement: The operative provisions commence on
Proclamation or otherwise six months and one day after the Bill
receives Royal Assent.
(Note: New section 47E which allows reproduction
or adaptation of a computer program in order to correct errors, is
to apply to activities on or after 23 February 1999. This was the
date on which the Government announced its decision to make this
amendment to the Copyright Act.(1))
To amend the
Copyright Act 1968 to add new exceptions to activities
which infringe copyright in computer programs.
The amendments proposed in this Bill originate
from recommendations in the 1995 report of the Copyright Law Review
Committee (CLRC) on computer software protection.(2) The Copyright
Law Review Committee was established in 1983 to consider and report
to the Attorney-General on specific copyright matters referred to
it from time to time. In 1988 the Committee was asked to report on
whether the Copyright Act 1968 (the Copyright Act)
adequately and appropriately protected computer programs. The
Committee released an issues paper in 1990 and a draft report in
June 1993. The final report, which was published in 1995, analysed
the 1984 amendments and recommended numerous changes to the
Copyright Act which would resolve a number of perceived existing
anomalies. Among the key areas covered by the Committee's report
were parallel importation (addressed by the Copyright Amendment
Act (No. 2) 1998), multi-media, and decompilation (addressed
by this Bill).
The Committee recommended that decompilation of
computer programs be allowed in only two circumstances:
-
- to achieve interoperability of computer programs, and
-
- to correct errors.(3)
This Bill enacts the Committee's recommendation
and adds a third circumstance under which decompilation is to be
allowed, that is, for the purpose of testing the security of
computer programs and the security of computer networks of which
they are a part.
Copyright and computer software
The Copyright Act 1968 regulates the
extent to which computer software can be copied. Software is
largely treated in the same manner as a 'literary work' although
there are also a number of specific software-related provisions in
the legislation. Copyright protection is automatic. There is no
requirement for owners of copyright to register their rights.
Copyright protection provides the copyright owner with certain
exclusive rights. In the case of literary works, the most important
exclusive right is the right to reproduce the work in a material
form(4) - in other words, the right to prevent unauthorised copying
of the work. Other important exclusive rights contained in section
31 include the right to publish the work(5) and the right to make
an adaptation (or translation) of the work.(6)
Computer software poses a number of problems to
traditional copyright law because, unlike other protected works, it
is impossible to use a computer program without incidentally
copying it. In many instances, it would be imprudent to use a
computer without seeking to make regular copies of the software for
back-up purposes.
The Copyright Act specifies a number of
exceptions in respect of actions that might otherwise constitute a
breach of copyright. One of these is 'fair dealing', under which
the copying of a portion of a protected work may be permitted for
the purpose of research or study.(7) Of particular significance in
the present context is section 43A which allows people who have
purchased computer software to copy the program for back-up
purposes.
International obligations
Australia is a party to two major international
copyright conventions: the Berne Convention for the Protection of
Literary and Artistic Works(8) and the Universal Copyright
Convention.(9) Over 100 other countries belong to one or
both of these conventions. (In addition, Australia is a member of
the Rome Convention which protects performers, producers of sound
recordings and broadcasters and the Geneva Phonograms Convention,
which gives additional protection to record producers against
piracy of their recordings.(10)) Australia is also a member of the
World Trade Organization (WTO). Australian law has been amended to
comply with Australia's copyright obligations under the WTO
Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS), which adopts and expands on many of the obligations under
the Berne, Rome and Geneva Conventions.(11)
In December 1996 two new treaties were agreed to
at the World Intellectual Property Organisation (WIPO) Diplomatic
Conference on Certain Copyright and Neighbouring Rights Questions
held in Geneva. These treaties are the WIPO Copyright Treaty (WCT)
and the WIPO Performances and Phonogram Treaty (WPPT). Australia is
yet to sign or ratify the treaties, so the obligations they contain
do not apply to Australia at this time.
International copyright protection is achieved
under international conventions by the principle of 'national
treatment'. Broadly speaking each convention member country gives
the same rights to the nationals of other convention countries as
it gives to its own nationals under its own law. In Australia, the
provisions of the Copyright Act extend to works of nationals,
citizens and residents of other convention countries and to works
made or first published in those countries by virtue of the
Copyright (International Protection) Regulations.
Copyright will therefore subsist in Australia in a work made by a
national of a country that is a party to one of the copyright
conventions to which Australia is also a party, provided that the
type of work concerned is covered by the convention and subject to
certain restrictions in the regulations. For example, as Australia
and the United States of America are members of the Berne
Convention, original works of US nationals or works first published
in the USA will receive the same copyright protection as Australian
nationals receive under the Copyright Act.(12)
Technical issues concerning computer
programs
(An explanation of all the technical terms used
in this section is provided in the Glossary at the beginning of the
Digest.)
A computer program is a set of instructions
which directs a computer to perform certain tasks in order to
produce a desired result. Programs are generally written in high
level programming languages. The source code containing the high
level language instructions must be translated into machine
readable object code before the computer can execute the program.
Prior to the distribution of a computer program, the computer
programmer usually compiles or assembles the source code into
object code which is in machine readable form. Generally only the
object code of the computer program will be distributed on disks.
The source code will usually be kept secret. Both the source code
and object code are protected under the Copyright Act.(13)
The 'reverse engineering' of a computer program
involves decompiling or disassembling the object code of the
program to produce the source code in which the program was
originally written, thereby facilitating the extraction of the
underlying ideas through analysis of the source code. Decompiling
or disassembling a computer program essentially involves the
opposite process to that undertaken when compiling or assembling
the program. The reverse engineering of a computer program may be
undertaken for a number of purposes. In a noncommercial context, it
may be undertaken for purposes involving research to understand the
ideas underlying a program. In a commercial context, reverse
engineering may be conducted for purposes involving the correction
of errors in a program ('debugging'), the modification of a
program, the development of an interoperable program or the
development of a competing program.
The susceptibility of computer programs to
reverse engineering has resulted in the issue receiving
considerable attention, both in Australia and overseas. Some
writers have questioned whether software developers should be able
to rely upon copyright legislation effectively to prevent rival
products being created when those rival products do not embody a
direct copying of the original program. The counter argument is
that if reverse engineering is allowed to proceed unchecked, the
creativity and profitability of genuine innovators will be
stifled.
Overseas comparisons
Overseas there is an emerging trend which
favours the right of reverse engineering in certain circumstances.
In 1991 the European Union issued a Council Directive on the Legal
Protection of Computer Programs ('the EC Software Directive').(14)
Article 6 of the EC Software Directive allows decompilation for
interoperability with other software and for error correction. This
Article has now been adopted into the English law as from 1 January
1993 by introducing new section 29A-D into the Copyright Design
and Patents Act 1988 (UK).(15) The effect of the amendments to
the English law is to remove from infringement the taking of a
back-up disk, the decompiling of a computer program to achieve
interoperability, and the avoiding of contractual restrictions to
defeat these objectives, and the studying of programs and error
recovery for the purpose for which the program was purchased.(16)
The proposed amendments to the Australian law go further than the
EC Software Directive and the English law by allowing decompilation
of hardware as well as software, and by allowing copying and
decompilation for security testing.
According to the Explanatory Memorandum, it
would appear that decompilation for purposes of interoperability
between software and hardware is permissible in the USA.(17) It is
suggested that if decompilation for the purposes of
interoperability between software and hardware was not permitted,
Australian software producers might find themselves still at a
disadvantage in the market compared to US producers.(18) In 1998
the US Congress passed the Digital Millennium Copyright
Act to implement the World Intellectual Property Organization
Copyright Treaty and Performances and Phonograms Treaty, and for
other purposes. The US Act provides exemptions to copyright
prohibitions for, inter alia, 'purposes of achieving
interoperability of computer programs' and 'lawfully authorized
investigative, protective, information security, or intelligence
activities of the United States'. The Act defines 'information
security' as 'activities carried out in order to identify and
address the vulnerabilities of a government computer, computer
system, or computer network'.(19)
Computer programs and piracy
Unlike a majority of 'literary works' protected
by copyright legislation, computer programs are particularly
susceptible to unauthorised copying. Piracy has been a key concern
of the major software producers. A report commissioned by the
Business Software Alliance suggests that Australia had an average
software piracy rate of 32 per cent, compared with a rate of 27 per
cent in the United States.(20) The Government has said that the
changes proposed by this Bill 'will not in any way weaken the
existing sanctions against making pirate copies of computer
programs'.(21) The proposed amendments will allow decompilation
only if the owner of the computer source code unreasonably refuses
to provide the information. It will not be allowed for other
purposes, such as producing software that directly competes with
the original product. On 1 April 1999 the Government announced an
investigation to examine the cost and scope of piracy in Australia,
the adequacy of existing penalties and the resources available to
police and customs services to deal with this problem.(22)
Simplifying copyright law
In September 1998 the Copyright Law Review
Committee released Part 1 of its most recent report on the
Simplification of the Copyright Act 1968. Part 1 deals
with 'Exceptions to the exclusive rights of copyright owners'. In
it the Committee has recommended the introduction of a revised,
open-ended fair dealing exception for all copyright material,
including computer software.(23) The Committee's recommendation has
received a mixed reaction from Australia's copyright community.(24)
The Government has indicated that it will be some time before it
can review all the comments and make a decision on the
recommendation.(25)
It has been suggested that, in the digital age,
access to copyright material will depend as much, if not more, on
the contracts and technological systems under which rights' holders
make their works available to the public. If those contracts and
systems override the access that fair dealing is supposed to
ensure, the careful balance of rights and exceptions set out in the
Copyright Act will become largely ineffective.(26)
New sections 47B-47H, dealing
with exemptions to activities which infringe copyright in computer
programs, are inserted in the Copyright Act 1968 by
item 2 of Schedule 1 of the
Bill.
Exceptions relating to normal use and
study of computer programs
Subject to two exceptions, the copyright in a
computer program will not be infringed by the copying of it if:
-
- the copy is made in the course of running a copy of the program
for the purposes for which it was designed; and
-
- the running of the copy is done by, or on behalf of, the owner
or licensee of the copy used [proposed subsection
47B(1)].
Proposed subsection 47B(2)
provides two exceptions to the exemptions provided by
proposed subsection 47B(1), namely:
-
- copying from a copyright infringing copy of the computer
program, or
-
- copying contrary to any express direction or licence of the
owner of the copyright in the program to the owner of the copy from
which the copy is made when the owner of the copy acquired it.
Subject to one exception, the copyright in a
computer program will not be infringed by the copying of it if:
-
- the copy is made in the course of running a copy of the program
for the purpose of studying ideas behind the program and the way in
which it works, and
-
- the running of the copy is done by, or on behalf of, the owner
or licensee of the copy [proposed subsection
47B(3)].
Proposed subsection 47B(4)
provides one exception to the exemptions provided by
proposed subsection 47B(3), namely:
-
- copying from a copyright infringing copy of the computer
program.
Exemptions relating to back-up copies of
computer programs
Subject to two exceptions, the copyright in a
computer program will not be infringed by the copying of it if:
-
- it is made by, or on behalf of, the owner or licensee the copy
(the original copy) from which the copy is made, and
-
- the copy is made only for the use of, or on behalf of, the
owner or licensee of the original copy, and
-
- the copy is made for either use as a working copy, back-up
copy, or to replace either the original copy or another copy in the
event of either of such copies being lost, destroyed or rendered
unusable [proposed subsection 47C(1)].
In addition, the copyright in a computer program
will also not be infringed by the copying of it if the copying is
part of the normal back-up copying of data for security purposes
[proposed subsection 47C(2)].
Proposed subsection 47C(4)
provides three exceptions to the exemptions provided by
proposed subsections 47C(1) and (2), namely:
-
- copying from a copyright infringing copy of the computer
program
-
- if the owner of the copyright in the computer program has
designed the program in a way so that copies of it cannot be made
without changing the program, or
-
- if a license to use the original copy has expired or been
terminated.
Exemptions relating to copies of
computer programs to make interoperable products
Subject to one exception, the copyright in a
computer program will not be infringed by the copying or adaptation
of it if:
-
- the copy or adaptation is made by, or on behalf of, the owner
or licensee of the copy (the original program) used for making the
copy or adaptation
-
- the copy or adaptation is made for obtaining information needed
to allow the owner or licensee to make independently another
program (the new program), or an article, to connect to and be used
together with or interoperate with the original or any other
program
-
- the copy or adaptation is made only to the extent necessary to
allow connection and interoperability with the original program or
any other program
-
- the new program copies or adapts the original program only to
the extent necessary to allow it to connect/interoperate with the
original or other program, and
-
- the information needed to allow the owner or licensee to make
independently another program, or an article, to connect to and be
used together with or interoperate with the original is not readily
available from another source when the copy or adaptation is made
[proposed subsection 47D(1)].
Proposed subsection 47D(2)
provides one exception to the exemptions provided by
proposed subsection 47D(1), namely:
-
- making a copy or adaptation from a copyright infringing copy of
the computer program.
Exemptions relating to copies of
computer programs to correct errors
Subject to one exception, the copyright in a
computer program will not be infringed by the copying or adaptation
of it, on or after 23 February 1999, if:
-
- the copy or adaptation is made by, or on behalf of, the owner
or licensee of the program (the original copy) used for making the
copy or reproduction
-
- the copy or adaptation is made for correcting an error in the
original copy that prevents it from operating as intended or in
accordance with its specifications or supplied documentation
-
- the copy or adaptation is made only to the extent reasonably
necessary to correct the error, and
-
- when the copy or adaptation is made, another copy of the
program that does operate in the intended way is not available to
the owner or licensee within a reasonable time at an ordinary
commercial price [proposed subsection
47E(1)].
Proposed subsection 47E(2)
provides one exception to the exemptions provided by
proposed subsection 47E(1), namely:
-
- making a copy or adaptation from a copyright infringing copy of
the computer program.
Exemptions relating to copies of
computer programs for security testing
Subject to one exception, the copyright in a
computer program will not be infringed by the copying or adaptation
of it if:
-
- the copy or adaptation is made by, or on behalf of, the owner
or licensee of the copy (the original copy) used for making the
copy or adaptation
-
- the copy or reproduction is made for testing in good faith the
security of the original copy, or a computer system or network of
which the original copy is part, or investigating, or correcting,
in good faith a security flaw in, or the vulnerability to
unauthorised access of, the original copy, or a computer system or
network of which the original copy is part
-
- the copy or adaptation is made only to the extent reasonably
necessary to achieve such security testing purposes, and
-
- the information resulting from the copying or adaptation is not
readily available to the owner or licensee from another source when
the copy or adaptation is made [proposed subsection
47F(1)].
Proposed subsection 47F(2)
provides one exception to the exemptions provided by
proposed subsection 47F(1), namely:
-
- making a copy or adaptation from a copyright infringing copy of
the computer program.
Unauthorised use of copies or
adaptations of computer programs
The exemptions afforded by proposed sections
47B-47F will not apply to unauthorised copies or adaptations of
computer programs, or any information derived from such copies or
adaptations, which are used, sold, or supplied to a person for
purposes other than those specified in proposed sections 47B-47F
[proposed section 47G].
-
- 'Copyright changes to help Australian software industry', Sen
the Hon Richard Alston & Hon Daryl Williams MP, Press
release (Minister for Communications, Information Technology and
the Arts), 19/99, 23 February 1999.
- Australia. Copyright Law Review Committee, Computer
software protection (Chairman: Justice I.F. Sheppard),
Canberra, 1995.
- ibid., p. 10-12.
- Copyright Act 1968 s.31.
- Copyright Act 1968 s.31(1)(a).
- Copyright Act 1968 s.31(1)(e).
- Copyright Act 1968 s.40.
- Berne Convention for the Protection of Literary and Artistic
Works, Australian Treaty Series, 1978 No. 5, Canberra,
1978.
- Universal Copyright Convention, Australian Treaty
Series, 1978 No. 2, Canberra, 1978.
- Copyright law in Australia: a short guide,
Attorney-General's Department, Canberra, 1996, p. 14.
- Copyright (World Trade Organization Amendments) Act
1994.
- Copyright law in Australia: a short guide, op cit, p.
15.
- Gordon Hughes, 'Electric blues: unresolved issues with
copyright and computer software', Background papers (Law and
Public Administration Group), 11/1994, 23 June 1994, footnote
24, p. 13.
- EC Directive on the Legal Protection of Computer
Programs, 14 May 1991, 91/250/EEC.
- Laurence J Cohen, 'Copyright, multi-media, interoperability and
related technologies: a review', Computer Law and
Practice, vol. 9, no. 1, 1993, p. 29.
- ibid., footnote 12, p. 35.
- Copyright Amendment (Computer Programs) Bill 1999,
Explanatory Memorandum, p. 8.
- ibid., p. 8.
- Digital Millenium Copyright Act (US), Public Law
105-304.
A summary is provided on the Library of Congress Internet site at
http://thomas.loc.gov/cgi-bin/bdquery/D?d105:1./temp/~bdgkEQ:@@@L|/bss/d105query.html|#summary:@@@L|/bss/d105query.html|#summary
(29 April 1999)
- 'Third of firms' computer software pirated: study',
Canberra Times, 30 January 1999, p. C5; 'Pirates sink 7300
jobs, report says', Australian, 2 February 1999. The
report is available on the Internet at the Business Software
Association of Australia site at www.bsaa.com.au (29 April 1999).
- 'Copyright changes to help Australian software industry', op
cit, p. 1.
- 'Piracy inquiry outcome "comes first"', Australian
Financial Review, 6 April 1999, p. 38.
- Australia, Copyright Law Review Committee, Simplification
of the Copyright Act 1968, Part 1, 'Exceptions to the
exclusive rights of copyright owners', Canberra, 1998, p. 7.
- For example, 'What could be fairer than fair use?', Jamie
Wodetzki, Communications Update, November 1998, p.17 and
'Fair dealing recommendations welcome but worrying', Libby Baulch,
Communications Update, November 1998, p. 14-15.
- Copyright Amendment (Computer Programs) Bill 1999,
Explanatory Memorandum, p. 8.
- Jamie Wodetzki, 'What could be fairer than fair use?',
Communications Update, November 1998, p.17.
Rosemary Bell and Ian Ireland
30 April 1999
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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