TFM:Protection of Computer Programs

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Protection of Computer Programs

Chris Wood

Computer software provides the basis for one of the biggest minefields in Australian Law. As most people know, the law does not so much move with the times as move years behind it and modern technology has had a difficult time incorporating itself into existing law. Computer software provides an enormous challenge for law makers, many of whom do not understand the true nature of a computer program. However, in 1984 the Copyright Act was amended to include computer programs, and copyright now provides the main form of protection to software. Other forms of protecting the intellectual property in computer programs such as confidential information and patents can also be useful. Anyone writing computer programs should also be aware of the ways of protecting computer software and the various ways of exploiting an original program to make a profit, as well as the risk of infringing someone else's copyright.

An Overview of Copyright Law

In Australia, Copyright vests automatically in literary works which include music, novels, artworks and computer programs. Generally, copyright restricts people's ability to duplicate material they did not write. It gives the author the right to publish, copy, translate, licence or transfer the work. In this way it provides a means of making a profit, through royalties, from original material. To claim copyright, the work must be unpublished and you must be an Australian citizen. Because copyright vests automatically in original work, it does not require registration (such as in America) and does not even require the "copyright 1996 -- All rights reserved" statement that we often see. However, such a statement is not completely wasted; it does show an intention to protect one's rights and may make people think twice about copying the work, and it may be required by other countries in which you plan to market the product.

Copyright (generally) lasts for the life of the author plus fifty years. This varies if the author was a company or if the work was published after the author's death, but generally the "life plus fifty" phrase is pretty accurate. Copyright can be sold, licensed, assigned and given under a will. It can be owned by companies and joint ventures as well as people, it can be owned jointly, and different people can own copyright to different parts of the same product.


The way copyright works is by giving authors a right to recover lost royalties from people who wrongfully copy their material. Authors can ask pirates to "account" for lost profits and hand them over. This is particularly useful where a member of the public has been copying the product and selling it as the original. Other solutions can include damages, injunction and so on. Although there are authorities that monitor the illegal duplication of material (especially in software), enforcing your rights usually involves commencing legal action against the offenders. This can be very expensive.


Standing against these rights of action are a number of defences. The most commonly known of these is the fair dealing defence. Generally, this allows a person to duplicate part of a work for the purpose of their course of study if it is a "fair dealing". What constitutes a fair dealing depends on how readily available the work is, the purpose of the copying, the nature of the work and so on. The Act goes on to say that 10% of a work, or any one chapter is a "reasonable portion" and thus you are automatically okay. You can also have a fair dealing for the purposes of criticism and review, judicial process, or reporting news, and there are certain performance rights for literary and dramatic works. Section 43A of the Act also says that copying for the purposes of backing up a computer program is not a breach (thankfully), although there are big problems with this section because it envisages using the original and not a hard disk copy.

Copyright and computer software

The Copyright Act 1968 was out of date even when it was enacted. It failed to take into account the technology that was being developed at the time and is incapable of the flexibility required by the rapidly-moving computer industry. The 1984 amendments to the Act (which included computer programs in the definition of literary work) were a hasty attempt to provide what turned out to be a piecemeal solution to a problem that required specific legislation; see below for information on two more amendments to the Act, made in the year 2000, that continue this tradition.

Of course, life of the author plus fifty years is an inappropriately long period of protection for software. Anyway, enough whingeing, we're stuck with it. It is necessary to look at the application of copyright in this area and some of the problems it causes.

To look at application first, it applies in the same way as a literary work. You can copy your own work, and you can not copy other material which is the subject of copyright. What you need to remember is that copyright protects the expression, not the ideas. (This is referred to as the idea/expression dichotomy by lawyers, who like big words.) However, if you copy the ideas behind a program, you may be breaching a patent, or perhaps leave yourself open to a "look and feel" claim, but more of that below. Tricky situations can arise where a computer program produces an original work in material form. Copyright may even vest separately in whatever is produced by the computer (ie the print out). It is also useful to know that copyright applies internationally under the Berne convention (trade marks do not, and patents don't always).

Problems and Traps

As for the problems, there are many. There are several major traps that the average computer programmer needs to be aware of. One of these is the ease of copying. It is quite possible to accidentally copy a program when copying a disk for a friend, or grab some stuff from the network drive without realising that you may be breaching copyright. Helping someone else to copy a program can also get you in strife.

You may need to produce some evidence that you wrote the program, so your original flow charts, pseudocode and so on can be important. This may also arise where several people have had a hand in writing the program. Where the individual authorship cannot be established, joint ownership may arise (which can be a problem when you come to sell or licence the program).

People who bash out code for their work should be aware that companies usually reserve the rights in anything you produce. This means that you need to be careful if you produce your own program (or even other literary or artistic work) while employed - it may be covered by a very oppressive clause in your employment contract. Fortunately, these clauses are quite rare. Those programming professionally also need to be aware that when you are commissioned to produce a particular product for a company, copyright may vest in you (or more likely, your employer). However, a recent Federal Court decision says that programmers may be restricted in how they use software they are commissioned to produce for a client. If you produce a program for Uni, you need not be so worried. It is very difficult to see how the University could claim copyright in your assignments, and the University Rule 2.9 clearly states that although the University may keep the original copy of any work, it does not affect the intellectual property (this is different if you are a staff member).

What is Look and Feel?

In an American case called Broderbund Software v Unison World, the judge described the screen display as not merely a set of rules and instructions, but an artwork that is aesthetically pleasing. This is enough to make it a work of art, and thus covered by copyright law. The best way to describe look and feel is if you consider a novel. Copying the look and feel of a program is like copying the plot and characters of the novel without actually copying any of the words. Therefore, in America at least, it is possible to breach copyright without actually copying any of the code.

The look and feel situation in Australia is unclear. The Australian Copyright Law Review Committee looked at the matter in 1990 a paper called Issues paper: Computer Software Protection and decided (strangely) that look and feel was sufficiently clear in Australia. This implies that look and feel does have a part to play in Australian Copyright Law. The most likely approach to be adopted in Australia is the one used in the American case Whelan v Jaslow Dental Laboratory. In that case the almost identical look and feel to that of the original program was only one of the factors that contributed to the finding that it was a copy of the original program. That means that if you like the look and feel of another program, make sure that the code, file organisation and structure are completely original.

Copyright and the WWW

Don't be fooled --- copyright can still exist in material that is on the Web. In reality, most people who put material on the web are not too concerned about people copying it. In fact, if they wanted to sue you, what would be the damages? It is not as if you have robbed them of any royalties. Some people may get nasty about you claiming their work as your own, so acknowledgment of the author is always a good idea. There is a lot of difference between downloading a handy site to a faster server because it is too slow a connection and claiming to have produced something you did not. Of course, if you took internet information and sold it to people who did not have access to the Web, you would be dead in the water (so to speak).

Other Forms of Protection

Confidential Information

Confidential information is another form of protection that the law recognises. It usually applies to information that is passed on under circumstances that where the person receiving the information is aware that it is a secret. Also called "trade secrets", the law of confidential information usually applies to inventions, and is particularly important for employers who want to protect the secret edge they have over their competition.

The way confidential information applies is to protect ideas where the author makes efforts to protect confidentiality. The way you do this is by asking someone to accept the confidentiality of what you are about to show then and be bound by it. You must give them the option of accepting before you show them your secret. You can show a group of people the information if they accept the confidentiality, but once you lose the secret nature of it, you can't get it back (so don't put it on the internet if you want to use it).

Of course, the law in this area can apply to computer software, and there are some interesting situations that computer programmers need to be aware of. One of the main ones is changing jobs, and computer programmers are notorious for changing jobs. Any information that is given in a relationship of employment is usually confidential, especially if your employer makes a point of the secrecy of the information. It has also been suggested that techniques you teach to your employer in a context of confidentiality may be able to be protected.

It is also possible to use knowledge gained during your employment to help you decompile a program that was written at work. You can't use secret information to help you produce something, in other words you can't get an unfair advantage form your new- found knowledge (called "the springboard doctrine" by lawyers, who particularly like doctrines.) You are allowed to use any information that forms part of your stock and trade, but exactly what this includes a fine line.

Patents in Computer Software

I spoke earlier of copyright protecting the form of a work; patents protect the ideas behind it. It is a system of registration of original ideas in a public register in exchange for a monopoly on implementation of the idea. The idea must be not only original, but not already in the public domain and not obvious. Never market something before you consider applying for a patent --- it is usually too late by then. The courts have struggled with patents in computer software, however there is now a clear right to register a patent in a computer program.

So what sort of stuff should you be considering patents for? Probably none, or you would have already made a million bucks and not still at Uni. The sort of programs that are the proper subject of a patent are those that are so novel and inventive that they are quite revolutionary, the first spreadsheet or the first graphical interface may have been patentable. A new data encryption system called Touchlock TM is the subject of a patent in both US and Australia.

Patents are expensive. Not only does it cost you to register the patent, but you have to have it drafted by a patent attorney.[1] With less than one percent of patent applications recovering more than the cost of the invention, it makes a good argument for not racing out and spending your hard-earned until you are sure it is marketable. Petty patents are relatively cheap and provide a form of interim protection until you get around to getting the real thing done. If you really have a you-beaut idea, you should get advice about applying for a petty patent.


The term exploitation refers to using the intellectual property you own to make money. You can licence your product for certain purposes, or transfer all your rights, and so on.

Trade marks

You need a name. Something your new product can be identified by. Coke and Aeroplane Jelly are both registered trade marks. This means that no one else can use them and you can work on building product identity and so on. A trade mark cannot describe the product it applies to. The best trade mark names are made up words, like Westpac. There can be big problems getting a trade mark for a surname (although there are exceptions). These trade marks can be registered for seven years and extended for a further 14 years.


Most people don't write programs alone. You may have a joint venture and you will need to decide how you will structure your new enterprise. There are various tax and other advantages of companies, partnerships and joint ventures. You need to be aware that if you make a game, and one person does the artwork, one the music, one the code and so on, copyright will vest in the individual parts of it. This will be a potential disaster when you come to exploitation. There may be a need to (say) transfer the copyright to a new company in which you are all directors.


In summary, if it ain't yours, don't copy it. If you're not supposed to tell anyone, don't. If you want to keep it secret, don't tell anyone. If you really do have a good product, be aware of your rights and protect what is yours. And if you want to market it, be aware of the costs involved in doing so.


Since the writing of this article, two significant additional amendments to the Copyright Act of 1968 have been passed. They are the Copyright Amendment (Moral Rights) Act 2000, and the Copyright Amendment (Digital Agenda) Act 2000.

The Copyright Amendment (Digital Agenda) Act 2000 provides that the author of a work has the exclusive right to convert it to electronic form ("first digitisation") and publish it electronically ("right of communication"). It also extends the library and fair dealing exception to works in electronic form.

The Copyright Amendment (Moral Rights) Act 2000 grants the author of a work the right of attribution (right to be recognized as the author of a work) and the right of integrity (the right to object to any derogatory treatment of their work which might harm their honour or reputation.)

  1. And yes, they charge like lawyers, sometimes more.
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