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Submission on the Year 2000 Problem and Error Correction. Proposed Amendments to the Copyright Act 1968.

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Vincent
AutorLeif Gamertsfelder
CargoNational IT Group. Deacons Graham & James Lawyers. (Australia)

1.0 The Problem

1.1 Date error correction is central to Y2K remediation programs. However, amendments to the Copyright Act 1968 (Cth) ("the Act") in relation to error correction may be required to provide certainty in this area and to facilitate remediation programs.

1.2 Many industries are struggling to meet Y2K remediation deadlines. One reason for this is the time it takes to obtain copyright clearance where a third party owns the copyright in defective software. Without copyright clearance, remediation is unlawful in these cases.

1.3 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.

2.0 A Possible Solution

2.1 We submit that the Federal Government should consider amending the Act so that anyone copying software for the purposes of error correction are deemed not to infringe copyright in the software. The amendment could be modelled on Article 5.1 of the Council Directive of 14 May 1991 on the Legal Protection of Computer Programs (91/250/EEC) ("the Directive"), which is set out below:

"Article 5 Exceptions to the restricted acts

  1. In the absence of specific contractual provisions, the acts referred to in Article 4 (a) and (b)1 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 (emphasis added)."

2.2 The introduction of a provision in the Act mirroring Article 5.1 of the Directive would help to expedite remediation programs by eliminating the need to secure copyright clearance prior to performing error correction on software with short date fields.

2.3 An alternative to the introduction of a general provision such as Article 5.1 would be to introduce a specific defence to copyright infringement if the infringing conduct occurred as a result of error correction during the course of a Y2K remediation program. Such a provision could be transitional in nature to...

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