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COMPUTER SOFTWARE PROTECTION IN AUSTRALIA

04 May

COMPUTER SOFTWARE PROTECTION IN AUSTRALIA

YULIATI.,SH.LLM[1]

yuliaticholil@ub.ac.id

Published on Arena Hukum Law Journal , May 2005

ABSTRACT

The impact of technology on copyright law has become a foremost issue in recent times since computer software is an important component of these new types of property. There are three reasons that we must look at copyrights law related to the rapid changing in technology. Firstly, whatever we feel about the computer technology, it is here we are to stay. Secondly, there is no doubt that copyright concept which came from 18th century does not proper anymore, therefore it may be useful to reform the old idea to comply with new digital world. Finally, copyright is important because the new technology increases creativity in the arts and sciences, moreover it also can change the way we think.

Keyword: copyright , computer software

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 I. INTRODUCTION

“The system of copyright has great advantages and great disadvantages, and it is our business to ascertain what these are, and then to make an arrangement under which the advantages may be as far as possible secured, and the disadvantages as far as possible excluded ” T.Macauley[2]There is little doubt that the development of science and technology have had a significant role on human life, some new inventions such as semi conductor chips and computer software have brought us into the information age.

Intellectual property is a very interesting field of law. It grows in line with the development of science and technology, particularly in the area of copyright law. Marret points out that the main purpose of intellectual property law is to give protection to all the tangible products of human intellectual creativity although sometimes it cannot be seen in fact it can be very valuable.[3]Welch argues that new technology such as computer software, semi conductors and biotechnology have greatly contributed to the United States income, however, those kinds of technology are very reluctant to infringes, and as a result, the United States looses enormous profit annually.[4]The impact of technology on copyright law has become a foremost issue in recent times since; computer software is an important component of these new types of property. Ploman and Hamilton indicate that computer software can be used to create a wide range of intellectual property products such as musical composition, works of visual art, architecture design; sound recording a so forth, conversely it also creates difficulties in copyright law related to the complexity of this subject.[5]However, it is important to study the changes of copyright law in the information age. Halbert observes that there are several reasons to quest the changing of copyright law. Firstly, whatever we feel about the computer technology, it is here we are to stay. Secondly, there is no doubt that copyright concept which came from 18th century does not proper anymore, therefore it may be useful to reform the old idea to comply with new digital world. Finally, copyright is important because the new technology increases creativity in the arts and sciences, moreover it also can change the way we think.[6]In addition, Welch claims that the main problem in copyright law is the enforcement. He asserts that the development of technology particularly in computer software not only has provided excellent software, which can operate easily, but also can be pirated easily.[7]It means that copyright protection will face serious problems in both legal aspects and technological aspects in the near future.

The aim of this essay is to look carefully at the significant changes on Australia Copyright Law concerning with the development of computer software through its legislation and the court decisions.

The study is presented in four parts. Part I introduces the significant relationship between the development of science and technology, particularly on computer software and its impact on copyright law. Part II explains briefly the nature of copyright and the development of computer software. Part III examines carefully the copyright legislation in Australia and its amendments. It also presents some copyright cases related to computer software in Australia compared to American cases, in order to know whether copyright protection is sufficient for computer software. Finally, it draws some conclusions in relation to the best protection for computer software.

 

 

II. THE NATURE OF COPYRIGHT

2.1. The Basic Concepts of Copyright

Copyright is the most challenging part of intellectual property law. Intellectual property law protects the property rights in creative works and inventive discoveries. Intellectual property law gives creators and inventors an exclusive right to obtain economic benefit, generally for a limited time.Copyright does not protect the ideas but the expression of the ideas. Moreover it also protects a wide range of subject matter from the simple one such as train timetable, to the sophisticated such as computer software. Furthermore, it also involves different kinds of professions such as authors, publishers, artists, sound recording producers, film producers, broadcasters, computer programmers and so on.[8]It is useful therefore, to know the basic concept of copyright before discussing it in more detail. Mc Keough and Stewart point out that the most important aspect of copyright is the right of the owners to commercialize the works and the sufficient legal protection for their works.[9]

In discussing the basic concepts of copyright, it would be valuable to know the two different concepts, which influence determining the owner of a copyrighted works. Firstly, the concept of copyright which grew in England. Copyright legislation in England gave legal protection for the publisher of books against unauthorized copying.[10] The Statute of Anne is the first statute that regulates copyright was passed in 1709 and came into force on 10 April 1710. The purpose of this act as stated on the preamble, for the encouragement of learning, simultaneously sought to satisfy:

(i) The demands of the stationers’ company by restoring to them the sole right to print books then printed for a period of 21 years;

(ii) The demands of authors and their assigns for recognition of their sole right to print books not yet printed, published or “that shall hereafter be composed” for a term of 14 years from the date of publication. After the expiration of the 14-year term, the sole right of printing or disposing of copies return to the author, if living, for another term of 14 years. Thus, the statutory copyright was not being limited to the members of the guild, and it was not to exist in perpetuity.

(iii) the public interest in the supply  of cheap books by providing that any bookseller or booksellers, printer or printers, shall…set a price rate as shall be conceived by any person or persons to be too high and unreasonable; it shall be and may be lawful for any person or persons to make complaint thereof to the Archbishop of Canterbury, Lord Chancellor (or to a member of specified dignitaries of church and bench) who were given powers to inquire into the price and “to limit or settle the price of every such printed book…according to the best of their judgments.”[11]It can be seen that the concept of copyright in England gave protection to the publisher and regulated the book trade, from which this statute copyright system is established.

Secondly, the basic concepts that grew in the mainland of Europe particularly in French. Halbert points out that protection of copyright in French were based on natural right which is recognized as an exclusive right to the author as a creator.[12]However, both concepts go along in further development. In addition, Ploman and Hamilton argue: “In a modern approach the differences between two concepts are not important, since they are expressed less in the level of protection provided than in the formulation of rights.”[13]

There are several reasons that deal with copyright protection. Ploman and Hamilton indicate that, Firstly, base on common social justice, the author not only has the right to gain economic benefit from his or her works but also has moral rights. Secondly, based on economic reason, the existence of copyright protection makes it easier to exploit their works. Meanwhile, based on cultural progress, copyright protection will encourage the author to create new works and thus it will benefit the society as well as the country.

2.2. Definition of Computer Software.

Copyright is a type of property that is founded on a person’s creative skill and labor.[14]It is undeniable that new technology such as computer software has great influence on copyright law, particularly concerning subject matter of protection and authorship. It can be traced through several cases regarding computer software, which occurred either in the United States or in Australia. The court decisions in those cases give clear description as to the interpretation of copyright law.

Computer software is a new type of property that caused long debates related to the scope of protection and the type of protection. The Model Provision on the Protection of Computer software prepared by the World Intellectual Property Organization defines software generically, as including:

(i) “computer program” means a set of instructions capable, when incorporated in a machine-readable medium of causing a machine having information-processing capabilities to indicate, perform or achieve a particular function, task or result;

(ii)”program description” means a complete procedural presentation in verb, schematic or other form, in sufficient detail to determine a set of instructions constituting a corresponding computer program;

(iii) “Supporting material” means any material, other than a computer program or program description, created for aiding the understanding or application of a computer program. For example problem descriptions and user instructions;

(iv) “Computer software” means any or several of items referred to in (i) to (iii).[15]

Meanwhile, section 101 the United States Copyright Act 1976(amendment 1980) states that: “computer program is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.”[16]Moreover section 10(1) Australia Copyright Act 1968 defines:” software as set of instructions or statements which can be used with a computer to perform some function”.[17]

 

III. COMPUTER SOFTWARE PROTECTION IN AUSTRALIA

3.1. Overview on Copyright Law in Australia

In Australia, such as in any other intellectual property right acts, the copyright act is also derived from the United Kingdom Copyrights statutes. The first copyright act in the United Kingdom was the United Kingdom Fine Arts Copyright Act 1862, this act regulated protection for copyright. Since 1912, Australia has had a copyright act although it was similar to the United Kingdom Copyright Act 1911[18]. In 1958 Australia ratified the Bern Convention, thus the Copyright Act was amended in order to comply with the Bern Convention provisions. The new copyright act was enacted in 1968 and came into force on May 1969.[19]This Act has been amended several times, relating to the extent of subject matter of protection and also some new rights which are not been covered by this act. Blakeley points out that there are further reasons to change the Australia Copyright Act. Firstly, the development of science and technology has significantly contributed to change in copyright law. Secondly, Australia has become a member of some international agreements; consequently, Australia has to change its copyright law in line with these agreements. Finally, because Australian Copyright law follows the English tradition, it requires a new approach in order to harmonize with the Continental European copyright tradition.[20]

There are some basic principles under the Copyright Act 1968 namely; subject matter of protection, originality, ownership, infringement and defense.[21]This essay is only focused on subject matter and originality.

In respect of subject matter of protection, Christie asserts that the Copyright Act 1968 is very complicated and unfair.[22] Based on the Copyright Act 1968, there are three kinds of subject matter: works, subject matter than works and performances.[23]

Subject matter is categorized as works: literary, artistic, dramatic, and musical works.[24] Section 10 the Copyright Act 1968 states as follows:[25]

Literary works includes:

(a) A table, or compilation, expressed in words, figures or symbols (whether or not in a visible form); and

(b) A computer program or compilation of computer program.

Artistic Works means:

(a) A painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

(b) A building or a model of a building, whether the building or model is of artistic quality or not; or

(c) A work of artistic craftsmanship to which neither of the last two proceeding paragraphs applies;

Dramatic Works includes:

(a) A choreographic show or other dumb show; and

(b) A scenario or script for a cinematography film.

This current legislation does not define musical works, however it is stated on previous the Copyright Act 1905 section 4: “any combination of melody and harmony, or either of them”.[26]

Subject matter other than works includes sound recordings, cinematography films, broadcast, and published editions.[27]

The other category of subject matter of protection is subject matter other than works, which includes, sound recordings, cinematography films, television broadcast and sound broadcasts, published editions. Section 10(1) states:[28]

Sound recording means the aggregate of the sounds embodied in a record.

Cinematography film means the aggregate of visual images embodied in an article or thing to be capable by the use of that article or thing:

(a) Of being shown as a moving picture; or

(b) Of being embodied in another article or thing by the use of which it can be so shown;

In addition, includes the aggregate of the sound embodied in a soundtrack associated with such visual images.

Broadcast means transmit by wireless telegraphy to the public.

Another category of subject matter is performances, Section 27 states that:[29]

(1) Subject to this section, a reference in this Act to performance shall:

(a) be read as including a reference to any mode of visual or aural presentation, whether the presentation is by the operation of wireless telegraphy apparatus, by the exhibition of cinematography film, by the use of a record or by other means; and

(b) In relation to lecture, address, speech, or sermon-be read as including a reference to delivery;

Moreover, a reference in this Act to performing a work or an adaptation of a work has a corresponding meaning.

In respect of term of protection, each subject matter has a different duration. The Copyright Act gives the longest protection for subject matter, which is classified as Works for the rest of the author’s life, and 50 years after death, however, it does not apply for photography since it only lasts protection for 50 years after the first publication.[30]Meanwhile, this Act also gives different duration for subject matter other than works. All subject matter which fits in with other than works have protection for 50 years after first publication ( sound recording and cinematography) and 50 years after first made ( television broadcast and sound broadcast), but this legislation only provides protection for 25 years after first publication for published editions.[31]

Based on the classification of copyrighted works, the right of the owner is also different. The owner of literary, musical and dramatic works has exclusive right:” To reproduce the works in  a material form, to publish the works, to perform the works in public, to broadcast the works, to cause the works to be transmitted to subscribers to a diffusion service, to make an adaptation of the work, to do ,in relation to work that is adaptation of the first-mentioned work, any of the acts specified in relation to the first mentioned work in sub-paragraphs(i) to(v) inclusive”.[32]Meanwhile, the owner of the artistic work has an exclusive right :” To reproduce the work in a material form, to publish the work, to include the work in a television broadcast, to cause a television programs that includes the works to be transmitted to subscribers to a diffusion service”.[33]Moreover, the right of the owner of subject matter other than works is divided into four categories. Firstly, the owner of sound recording has an exclusive right: “to make a copy, to cause the recording to be heard in public, to broadcast, to enter into a commercial rental arrangement”. Secondly, the owner of cinematography film has exclusive right:” to make a copy, to perform in public, to broadcast, to cause the film to be transmitted to subscribers to a diffusion service”. Thirdly, the owner of television and sound broadcasts has exclusive right:” to make a copy of such a film or such a sound recording, to re-broadcast”. Finally, the owner of the published editions has exclusive right:” to make by a means that includes a photographic process, a reproduction of the edition”.[34]

In order to obtain copyright protection, there two requirements that must be satisfied. Firstly, the works must be original, Mc Keough and Stewart point out that the most important thing concerning originality is that the work must not be copied from another work entirely.[35]In the University of London Press LTD v University Tutorial Press Ltd., Peterson J said:” Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of “literary work”, with the expression of thought in print or writing. The originality that is required relates to the expression of thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work-that should originate from the author”.[36]Secondly, the work must have connecting factors. Based on the Copyright Act 1968, there are some different connecting factors, which depend on the subject matter of protection.[37]It also states in Article 32 the Copyright Act 1968:

Original works in which copyright subsists

(1) Subject to this Act, copyright subsists in an original literary, dramatic, musical, or artistic work that is u published and of which the author:

(a) Was a qualified person at the time when the work was made; or

(b) If making of the work extended over a period- was a qualified person for a substantial part of that period.

(2) Subject to this Act, where an original literary, dramatic, musical or artistic work has been published:

(a) Copyright subsists the work; or

(b) If copyright in the work subsisted immediately before its first publication-copyright continues to subsist in the work; if, but only if:

(c) The first publication of the work took place in Australia;

(d) The author of the work was qualified person at the time when the work was first published; or

(e) The author died before that time but was a qualified person immediately before his or her death.

(3) Notwithstanding the last preceding subsection but subject to the remaining provisions of this Act, copyright subsists in;

(a) An original artistic work that is a building situated in Australia, or;

(b) An original artistic work that is attached to, or forms part of, such a building.

(4) In this section, qualified person means an Australian citizen, an Australian protected person, or a person resident in Australia.[38]

To sum up, In order to obtain copyright protection in Australia, a work must be original, intangible or in material form and has connecting factors.

3.2. Computer Software Protection under Copyright Law 

The following part, presents the main problem concerned with the protection of computer software under copyright law. It covers the interpretation of computer software, and the difficulty in distinguishing between idea and expression of idea. Ricketson and Richardson assert that there is no certain definition for computer software, although the Copyright Act recognizes it as a literary works, however, the interpretation of computer software in the court is different.[39]

It is quite clear that the development of computer software has had great impact on copyright law, since it creates difficulties to be classified into subject matter of copyright protection. The term computer software or program  can be describe in many kind of different material from video games to scientific programs.  A program is executed by the central processing unit (CPU) of the computer, which is the center of control for arithmetical and logic operations within the microprocessor[40]. The computer can use the program if it has the ability of reading the program.

It is important to know the nature of the program in order to identify the most appropriate protection for computer software. Three stages usually are followed by the programmer to develop a program[41]. Firstly, the programmer decides on a structure of the program by defining what kind of program will be created, what computer language will be applied, and how the program will be operated. Secondly, the programmer designs a set of procedure to solve the problem, usually in a schematic, mathematical, or logical framework. Thirdly, the programmer translates the program into computer language, which is called “the source code” of the program, and then the source code translates into “object code” which consists of a binary or hexadecimal through the compiler.  Radack maintains that:” Instructions for computer are written by human being is special programming language that the computer can process, Should this computer program be considered the writing of an author? The computer reads the program as electronic impulses from magnetic tapes. Is writing, which is invisible to the human eye, copyrightable?”[42]Conversely, Clapes explains that:” Almost pure thought stuff. Castle in the air. Gratifies creative longings. The ultimate creative medium. A tangible form of dreams and imagination. Magic and mystery. Simplicity and elegance. So beautiful you could hang it on the wall. Trying to create a perceptual impression. A combination of both art and science. A lot of subconscious activity. The best software comes from the realm of intuition, that is the kind of property we call computer software”.[43] It is clear enough that the first stage of developing a program cannot be protected by copyright since it relates to conceptual arrangement of idea. In contrast, the second stage can be protected by copyright as it is an expression of idea. However, it is not easy to define whether the third stage can be protected by copyright because the copyright concept only grant protection to the expression of idea which is done by human being and intangible forms, whereas the third stage is being done by a machine and it also can not be seen, since a program is a series of bits, each bit representing the presence or absence of a pulse and it may be stored in a chips. In addition, Halbert maintains that the law faces difficulties to provide sufficient protection for computer software because of its different nature from traditional works. The various stages in developing a computer program cannot be maintained by the law since the interpretation of computer software is uncertain case-by-case basis.[44]

It is undeniable that the role of the United States to promote protection of software under intellectual property regime through either the World Intellectual Property Right Organization (WIPO) or GATT (General Agreement on Tariffs and Trade) has succeeded.[45] It continues to strengthening in the latest GATT round in which intellectual property has become a special issue in Uruguay round 1994, As a result, under the TRIPs agreement all member countries shall provide adequate protection on intellectual property. Article 10.1 TRIPs provides that computer programs shall be protected as literary works under the Bern Convention 1971. This provision confirms that computer programs must be protected under copyright and that those provisions of the Bern Convention. In addition, it also confirms that the form in which a program is, whether in source code or object code, does not affect the protection.[46]

The problem that arises concerning with computer software is whether a program can be treat as a literary work. The first Australia case regarding computer software was Apple case[47], the plaintiff is Apple computer Inc., and the defendant is Computer Edge. Beaumont J, in his decision said that a computer program does not fit with the meaning of literary works on the Copyright Act 1968. His honor said that:” a “literary work” is something intended to afford information, instruction, or pleasure in the form of literary enjoyment”.[48]This decision has raised warm debate; as a result, the Copyright Act was amended in 1984.

The Copyright Amendment Act 1984 recognized that computer program is a literary work, thus it can be protected under the Copyright Act. Section 10 (1) define computer program as:

An expression in any language, code, or notation of a set of instructions (whether with or without related information) intended, either directly or after either or both of the following:

(1) A conversion to another language, code, or notation.

(2) Reproduction in a different material form,

To cause a device having digital information processing capabilities to perform a particular function.[49]However, the definition of computer program does not state clearly whether object code can be protected under the Copyright Act or not, but the High court confirmed that source code could be protected by the Copyright Act.[50]

Another problem regarding computer software is the difficulties in drawing a line between the idea and the expression of idea when the infringement occurs. This problem has raised endless debate in not only Australia but also primarily in America.

In America the famous case, concerning the dichotomy between the idea and the expression of idea is Whelan v. Jaslow  the facts of case are as follows:

Jaslow Lab was searching for a computer system to administer the business part of its dental laboratory. Jaslow entered into an agreement with the Strohl Systems Group to develop custom-made software. Both agree that Strohl should be allowed to market the program. Ms.Whelan, a Strohl employee, then designed the dentalab program written in the EDL computer program language. Later, Ms. Whelan left Strohl and started her own computer business. Whelan Associates acquired  the rights in Dentalab from Strohl. Jaslow Lab and Whelan Associates consented to the further development of the system. Under the contract, Jaslow would receive a share of all sales in the program. Jaslow then developed a program with the same functions as Dentalab in the BASIC language, suitable for smaller computers (Dentcom program). Jaslow Lab terminated the contract with Whelan, claiming all rights in both the Dentalab and the Dentacom program. Jaslow Lab sued Whelan Associates for misappropriation of trade secret. Whelan Associates responded with an action before the US District, alleging copyright infringement of the Dentalab program. The District court found for Whelan Associates. It held that Jaslow’s Dentcom program infringed Whelan’s Dentalab program although Dentacom was not a direct translation of Dentalab.[51]In this case the Court define that the structure, sequence, and organization of a program as its expression and the function control is the idea.[52]

Another case concerning computer program is Lotus v.Paperback. In this case Lotus alleged that Paperback infringed the Lotus program. The Court found that the whole idea to establishing an electronic spreadsheet was uncopyrightable but the appearance of menu structure and graphic presentation was copyrightable.[53]

From the two cases it can be said that the Court implied different interpretation relating to dichotomy between idea and expression of the idea. In previous case, the Court seems to be broader  on its interpretation of idea, in contrast, in  later case the court seems to be narrower on its interpretation of  ideas.

In Australia, the definition of a computer software in the Copyright Act amendment 1984, which came into  test during the dispute that arose between Autodesk and Dyason. The summary of the case as follows: The first applicant is Autodesk Inc., a Californian company whose a computer program called “ AutoCAD”. The AutoCAD program can be used to produce Architecture drafting and  engineering plans. The second applicant is Autodesk Australia Pty Ltd, a Victorian company that holds an exclusive license from Autodesk Inc. The AutoCAD program is sold in a package including a hardware device  called AutoCAD lock. The purpose of this device is to prevent an unauthorized person  running the program, as The AutoCAD program cannot operate without AutoCAD lock. The respondent developed an alternative device  called Autokey lock, which has the same function as The AutoCAD lock. The applicant alleged that the AutoCAD lock was infringed by Dyason.[54]It cannot be argued that this case is controversial, since the reasoning and the decision of  the Courts were different. “At  first instance, Northrop J held that the fact  the two devices performed the same function was indicative of the objective similarity of the devices for copyright purposes.”[55] The decision on appeal at Full Federal Court was different, the majority of judges held that: “ Widget C and the AutoCAD lock together constituted a program, but that there had been no reproduction of this by the Autokey lock, which although it performed the same function as the AutoCAD lock, did not have sufficient degree of objective similarity to AutoCAD for the purposes of infringement of copyright.”[56] The decision on appeal at High Court, was that the majority agree that the respondent infringed the AutoCAD lock, however, The High court had a different reason to Full Federal Court. Dawson J argues that : “ It is not, in my view, necessary that the reproduction of a substantial part of a computer program should itself be a computer program within the meaning of the definition of “computer program” in this act. Perhaps undue attention was given in the courts below to the locks in question to ascertain whether either or both contained a computer program. For Widget C is a computer program and a substantial, indeed essential, part of that program is the look up table in the EPROM, which is uses. The EPROM contains a set of digits, which is identical with the set of digits produced by the look up table when read as Widget C read it. In effect, both Widget C and the Auto Key lock contain the same look up table”.[57] In brief, it can be said that the problem concerned with computer software under the copyright law is very complicated, and is not only related to the distinction between  idea and expression of idea, but also reproduction.

The most recent amendment related to computer software is the Copyright Amendment( Computer Programs) Act 1999, which came into force in 30 September 1999.[58] There are two important points, which are added in the current legislation. Firstly, it allows the owner or the licensee make a reproduction of computer program. Secondly, it provides reproduction for interoperability.

The new amendment allows the owner or licensee of a computer program( or a person acting on their behalf) to make the following reproductions of computer programs:[59]

– A reproduction during the normal use of the program ( i.e. in the course of running a copy of program for the purpose for which it was designed). This does not apply if such a reproduction would be contrary to an express direction or license from the copyright owner [ s.47B(1) and(2)];

– A reproduction in the course of running a lawful copy for the purpose of studying the ideas behind the program and the way in which it functions [s.47B(3)];

– A back up copy of computer program [s.47C]; or

– a reproduction for purpose of correcting an error in the original copy that prevent it from operating as intended by the author, or in accordance with specifications. The reproduction must only be made to the extent necessary to correct the error, and if an error-free version is not available within a reasonable time at an ordinary commercial price.

Section 47 D provides that a reproduction or adaptation:

a) Must be made by or on behalf of, the owner or licensee of the copy of the computer program;

b) must be made for the purpose of obtaining information necessary to enable the owner or licensee to make independently another program, or an article, to connect to and be used together with, or otherwise to interoperate with, the original program or any other program;

c) Must be made only to the extent reasonably to obtain the information referred to in (b).

To sum up, it can be seen that the interpretation on copyright concepts in Australia goes along the advance of technology.

 

IV. CONCLUSION

It is inevitable that the advance progress of  science and technology has a great impact  on many aspects including law. In respect of Copyright, which is arguable  the most dynamic part of intellectual property right, it changed significantly in line with the rapid grow of technology,  especially information technology.Computer software is the most important element of  new property that has changed the traditional concept of copyright. The nature of computer software has created difficulties to the court to interpret the concept of subject matter of protection, the scope of protection and the ownership.

The interpretation of computer software has arisen endlessly debate, since the interpretation is always changing, and is  heavily relied on a case-by-case basis.In respect of Australia, the Copyright Act has been amended several times. There are two important amendment concerning with computer software under the Copyright Act. Firstly, the Copyright Act Amendment 1984 which recognizes computer software as a subject matter of protection under copyright law. Secondly, the Copyright Act Amendment ( Computer Program)1999 that allows reproduction of computer program under certain circumstances and allows make a recompilation of a computer program.However, the most important thing that the development of computer software has created new concepts in copyright law. In addition, it also provides a new approach to how  copyright law needs to be kept in  pace with  technology.

 

BILBIOGRAPHY

An overview of  the Agreement on Trade Related Aspects of Intellectual Property Rights, http://www.wto.org, p.3.

 

Blackmore, Nicholas, “Debugging the Application: Copyright Protection for Software in Australia”, Australian Intellectual Property Journal, Volume 10, May 1999.

 

Blakeney, Michael, Bringing Australian Copyright Law into Global Age, Murdoch University Electronic Journal of Law, Vol.5, No.1,March, 1998. http://www.murdoch.edu.au/law/issue/v5n/blake51.html,p.1

 

Carr, Henry and Richard Arnold, “Computer Software Legal Protection in the United Kingdom”, 2nd edition, Sweet&Maxwell, London, 1992.

 

Christie, Andrew, Simplyfying Australian Copyright Law-the Why and the How, Australian Intellectual Property Journal, volume 11, February 2000.

 

Davies, Gillian, Copyright and the Public Interest, IIC Studies, Volume 14, the Max Planck Institute, Munich, 1994.

 

Drexl, Josef, What is Protected in a Computer Program? Copyright Protection in The United States and Europe, IIC Studies, volume 15, Max Planck Institute, Munich, 1994.

 

Halbert, Debora,  Intellectual Property in the Information Age, the Politics expanded ownership rights, Quorum Books, Westport, Connecticut, 1999.

 

Marret, Paul, Intellectual Property Law, Sweet & Maxwell, London,1996.

 

Marzouk,  Tobey, Protecting Your Proprietary Rights in The Computer and High Technologies Industries, Computer Society Press, Washington D.C, 1988.

 

Mc Keough, J and Andrew Stewart, Intellectual Property in Australia, 2nd edition, Butterworth, Sydney, 1997.

 

Ploman, Edward and Clark Hamilton,  Copyright Intellectual Property in the Information Age, Routledge and Keegan Paul, London, 1990.

 

Ricketson, S and Richardson, Intellectual Property Cases, Material and Commentary, 2nd edition, Butterworth, Sydney, 1998.

 

Legislation

Copyright Law in Australia, A Short Guide, http://law.gov.au/publications/copyrighhtaus99.

Copyright in Computer Software, Bulletin Australia Copyright Council , no.38, 10 November 1981.

Copyright Amendment ( Computer Programs) Act 1999, http://www.sea.net.au/law/updates/990104.

 

Case

Autodesk Inc. v. Dyason(1992) 173 CLR 330 F.C. 92/001, http://www.austlii.edu.au/cgi-bin/disp.pl/cases/cth.

 

 


[1] Lecturer at Law Faculty, Brawijaya University.

 

[2] Davies, Gillian, “Copyright and the Public Interest”, IIC Studies, Volume 14, the Max Planck Institute, Munich, 1994, p.1.

 

[3] Marret,Paul,” Intellectual Property Law”, Sweet & Maxwell, London,1996, p.1

 

[4] Welch, Marshall, “International Protection Of Intellectual Property”, Journal of Texas Intellectual Property law, http://www.utexas.edu/law/journal/tipj/vollis/welch.htm, p.1.

 

[5] Ploman, Edward and Clark Hamilton, “  Copyright Intellectual Property in the Information Age”, Routledge and Kegan Paul, London, 1990, p.173.

 

[6] Halbert, Debora, “ Intellectual Property in the Information Age, the Politics expanded ownership rights”, Quorum Books, Wesport, Connecticut, 1999, p.xi,xii

 

[7] see supra note 2, at p.3.

[8] Ricketson, S and Richardson, “ Intellectual Property Cases, Material and Commentary”, 2nd edition, Butterworth, Sydney, 1998, p.55.

 

[9] Mc Keough, J and Andrew Stewart, “Intellectual Property in Australia”, 2nd edition, Butterworth, Sydney, 1997, p. 119.

 

[10] see supra note5, p. 2-5.

[11] see supra note 1, p.8-9.

 

[12] see supra note 5, p 9.

 

[13] see supra note 4, p.26

 

[14] Copyright Law in Australia, A Short Guide, http://law.gov.au/publications/copyrighhtaus99,p.2.

 

[15] “Copyright in Computer Software”, Bulletin Australia Copyright Council , no.38, 10 November 1981,p.2.

 

[16] Marzouk, Tobey, “Protecting Your Proprietary Rights in The Computer and High Technologies Industries”, Computer Society Press, Washington D.C, 1988, p.21.

 

[17] Copyright Act 1968, sec 10(1).

 

[18] see supra note 7, p.66.

 

[19] Ibid,p.66-67

 

[20]Blakeney, Michael, “Bringing Australian Copyright Law into Global Age”, Murdoch University Electronic Journal of Law, Vol.5, No.1,March, 1998. http://www.murdoch.edu.au/law/issue/v5n/blake51.html,p.1

 

[21] see supra note 7, p.89, see also supra note 8,p. 119-120

 

[22] Christie, Andrew, “Simplyfying Australian Copyright Law-the Why and the How”, Australian Intellectual Property Journal, volume 11, February 2000, p.40.

 

[23] ibid,p.42.

 

[24] ibid.

 

[25] Section 10 Copyright Act 1968.

 

[26] see supra note 8, p.149.

 

[27] see supra note 22, p.43

 

[28] see supra note 25

 

[29] Section 27 Copyright Act 1968.

 

[30] Section 33 Copyright Act 1968.

 

[31] Section 93, 94, 95, 96 Copyright Act 1968.

 

[32] Section 31(1) a Copyright Act 1968.

 

[33] Section 31(1) b Copyrghrt Act 1968.

 

[34]Section 85, 86, 87, 88 Copyright Act 1968.

 

[35] see supra note 8, p.138.

 

[36] see supra note 7, p.104

 

[37]see supra note 8, p 166.

 

[38] Section 32 The Copyright Act 1968.

[39] see supra note 7, p. 125

 

[40] Carr, Henry and Richard Arnold, “Computer Software Legal Protection in the United Kingdom”, 2nd edition, Sweet&Maxwell, London, 1992, p.1.

 

[41] Blackmore, Nicholas, “Debugging the Application: Copyright Protection for Software in Australia”, Australian Intellectual Property Journal, Volume 10, May 1999, p.69-70. see also supra note 15, p.3, see also supra note 40, p.2-3.

[42] see supra note 4, p.168.

 

[43] see supra note 5, p. 52.

 

[44] see supra note 5, p.168

 

[45] see supra note 3, p. 5, see also supra note 8, p.227.

 

[46] An overview of  the Agreement on Trade Related Aspects of Intellectual Property Rights, http://www.wto.org, p.3.

 

[47] see supra note 8, p. 229.

 

[48] ibid.

 

[49] Ibid, p. 230.

 

[50] see supra note 40, p.71-72.

[51] Drexl, Josef, What is Protected in a Computer Program? Copyright Protection in The United States and Europe, IIC Studies, volume 15, Max Planck Institute, Munich, 1994, p.18-19.

 

[52] Ibid, 21.

 

[53] Ibid, 22.

 

[54] Autodesk Inc. v. Dyason(1992) 173 CLR 330 F.C. 92/001, http://www.austlii.edu.au/cgi-bin/disp.pl/cases/cth,p.2-3, see supra note 7, p.260-261.

 

[55] see supra note 8, p.232.

 

[56] see supra note 7, p.263

[57] see supra note 54, p.8.

 

[58] Copyright Amendment ( Computer Programs) Act 1999, http://www.sea.net.au/law/updates/990104.

 

[59] Intellectual Property and Competition Review Committee, Interim Report, April 2000, p.84.

 
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Posted by on 4 May 2012 in artikel jurnal

 

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