White SW Computer Law
Intellectual Property, Information Technology & Telecommunications Lawyers
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copyit [2011/06/09 18:23]
127.0.0.1 external edit
copyit [2017/07/30 18:02] (current)
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 Ignorance of the law is no defence. Ignorance of the law is no defence.
-====== Who owns the copyright in a computer program? ​======+===== Who owns the copyright in a computer program? =====
 In most cases, the programmer of the computer program is the owner of any copyright subsisting in the computer program unless the work was done pursuant to the terms of his or her employment, in which case the employer owns the copyright. In most cases, the programmer of the computer program is the owner of any copyright subsisting in the computer program unless the work was done pursuant to the terms of his or her employment, in which case the employer owns the copyright.
  
 You should consider having your employer assign the copyright to you if you wish to be able to use the copyright at a later date. You should consider having your employer assign the copyright to you if you wish to be able to use the copyright at a later date.
-====== Can I make backup copies of computer programs? ​======+===== Can I make backup copies of computer programs? =====
 You are legally entitled to make a backup of an original computer program if you are the owner of an authorised copy of the program. ​ This copy must be made only with the purpose of using the copy should the original copy be lost, destroyed or rendered unusable. You are legally entitled to make a backup of an original computer program if you are the owner of an authorised copy of the program. ​ This copy must be made only with the purpose of using the copy should the original copy be lost, destroyed or rendered unusable.
  
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 At no times are you permitted to make a backup copy of an infringing copy of a computer program. At no times are you permitted to make a backup copy of an infringing copy of a computer program.
-====== Importation of original copies of copyright works into Australia  ​======+===== Importation of original copies of copyright works into Australia ​ =====
 The owner of the copyright may have the Comptroller-General seize any imported copies ​ if making the  copies in Australia would have constituted an infringement of the copyright. The owner of the copyright may have the Comptroller-General seize any imported copies ​ if making the  copies in Australia would have constituted an infringement of the copyright.
  
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 The Comptroller-General must release the seized copies to the importer if an action for infringement of copyright is not commenced within the required time period The Comptroller-General must release the seized copies to the importer if an action for infringement of copyright is not commenced within the required time period
-====== Which acts are illegal? ​======+===== Which acts are illegal? =====
 With respect to computer software, it is illegal to do the following: With respect to computer software, it is illegal to do the following:
   * To lend software so that a copy can be made or to copy software while it is on loan.   * To lend software so that a copy can be made or to copy software while it is on loan.
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   * To copy or distribute software or accompanying documentation without a licence or permission from the copyright owner.   * To copy or distribute software or accompanying documentation without a licence or permission from the copyright owner.
   * To compel, allow, encourage or request that employees make, use or distribute illegal copies of software.   * To compel, allow, encourage or request that employees make, use or distribute illegal copies of software.
-====== What are the penalties? ​======+===== What are the penalties? =====
 Illegal copying of software may constitute a criminal offence and may expose the offender who may be an individual, a company, the directors of a company, a government body, an educational institution or another entity to fines and/or a prison sentence. ​ Civil liability also applies. ​ Illegal copying of software may constitute a criminal offence and may expose the offender who may be an individual, a company, the directors of a company, a government body, an educational institution or another entity to fines and/or a prison sentence. ​ Civil liability also applies. ​
  
 A regular software audit should be made by employers of all software being used at their place of business. ​ It is your responsibility to ensure that your software is correctly licensed. A regular software audit should be made by employers of all software being used at their place of business. ​ It is your responsibility to ensure that your software is correctly licensed.
-====== What copyright issues should software developers consider? ​======+===== What copyright issues should software developers consider? =====
 Software developers should ensure that they have a written agreement which provides them with adequate protection with respect to copyright issues.  ​ Software developers should ensure that they have a written agreement which provides them with adequate protection with respect to copyright issues.  ​
   * An adequate description of the software and associated documentation   * An adequate description of the software and associated documentation
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   * Sub-licences   * Sub-licences
   * Maintenance/​Warranty   * Maintenance/​Warranty
-====== I have thought about licensing my program to another party. What issues should I be thinking about? ​======+===== I have thought about licensing my program to another party. What issues should I be thinking about? =====
 It is prudent for both the current owner of the copyright and the licensee to have a written agreement. ​ This avoids, amongst other things, any arguments ​ as to the terms and conditions of the assignment of the copyright. It is prudent for both the current owner of the copyright and the licensee to have a written agreement. ​ This avoids, amongst other things, any arguments ​ as to the terms and conditions of the assignment of the copyright.
-====== My customer is insisting that they should own the copyright? ​ What are the arguments for and against the customer owning such rights? ​======  +===== My customer is insisting that they should own the copyright? ​ What are the arguments for and against the customer owning such rights? ===== 
-===== For  ​=====+==== For  ====
   * It is cheaper if the software developer retains the intellectual property ​ rights as the cost of development and maintenance can then be spread across multiple customers.   * It is cheaper if the software developer retains the intellectual property ​ rights as the cost of development and maintenance can then be spread across multiple customers.
   * It is not worthwhile for the software developer to have to supply different [[http://​en.wikipedia.org/​wiki/​Fork_(software_development)|forks]] of the software for different customers and associated maintenance periods.   * It is not worthwhile for the software developer to have to supply different [[http://​en.wikipedia.org/​wiki/​Fork_(software_development)|forks]] of the software for different customers and associated maintenance periods.
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   * It interferes with the resale value of the software developer'​s business if there is no underlying asset to sell.   * It interferes with the resale value of the software developer'​s business if there is no underlying asset to sell.
   * [[http://​www.escrowagent.com.au|Escrow]] of the source code provides sufficient protection to the customer'​s need to be able to insure against the developer becoming insolvent or not supply appropriate maintenance services.   * [[http://​www.escrowagent.com.au|Escrow]] of the source code provides sufficient protection to the customer'​s need to be able to insure against the developer becoming insolvent or not supply appropriate maintenance services.
-===== Against ​ =====+==== Against ====
   * The customer requires a competitive advantage to exclude others from using the software.   * The customer requires a competitive advantage to exclude others from using the software.
   * The customer requires more flexibility in terms of licencing and access to source code.   * The customer requires more flexibility in terms of licencing and access to source code.
   * The customer needs to be able to get competitive pricing for the maintenance services from multiple vendors.   * The customer needs to be able to get competitive pricing for the maintenance services from multiple vendors.
   * The customer is proposing to spend very substantial sums on developing its own unique variant of the software   * The customer is proposing to spend very substantial sums on developing its own unique variant of the software
-====== Is your legal documentation up to date and checked by a lawyer? ======  +===== Is your legal documentation up to date and checked by a lawyer? =====
-This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquires and seek appropriate legal advice.+

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