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Interoperability and Error Correction: Australian Copyright issues.

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Vincent
AutorLeif Gamertsfelder
CargoNational IT Group. Deacons Graham & James Lawyers. leif.gamertsfelder@dgj.com.au (Australia)

The current Australian copyright regime causes two significant problems for programmers and software developers. As Australian law currently stands, in commercial contexts there are very limited exceptions to copyright with respect to copying for the purpose of achieving either error correction or interoperability by reverse engineering.

This situation is a potential cause of inefficiency in the Australian IT industry because copying of protected material requires developers and programmers to obtain authorisation from copyright holders prior to performing reverse engineering or error correction. However, such a broad-ranging copyright (which is generally strictly enforced by Australian courts) appears to have no obvious social, moral or economic justification and leaves Australia out of step with copyright law in the US and the EU as we march into the new millennium.

An example of the importance of error correction exceptions to copyright has recently become evident in the context of Y2K remediation programmes. Many industries are struggling to meet Y2K deadlines. One factor that can potentially increase the duration of a Y2K program is the time it takes to obtain copyright clearance where a third party owns the copyright in defective software. Without a copyright clearance remediation will generally be unlawful in these circumstances.

This means that many businesses, which have identified a Y2K problem and have the resources to fix it, cannot legally do so unless copyright clearance is obtained.

Deacons Graham & James made submissions to Senator Alston’s Y2K Project Office requesting the Federal Government to consider amending the Copyright Act so that anyone copying software for the purpose of error correction is does not to infringe copyright.

This particular amendment could be modelled on Article 5.1 of the EU Directive on the Legal Protection of Computer Programs, which provides that copying:

"in the absence of specific contractual provisions…shall not require authorization by the rightholder where they are necessary for the use of the computer program by the lawful acquirer in accordance with its intended purpose, including for error correction."

The introduction of a provision in the Copyright Act mirroring Article 5.1 of the Directive would facilitate Y2K programmes by eliminating the need to secure copyright clearance prior to performing error correction on software with short date fields.

An alternative to the introduction of a...

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