White SW Computer Law
Intellectual Property, Information Technology & Telecommunications Lawyers
Melbourne Office - PO Box 452, COLLINS STREET WEST Victoria 8007 Australia
Sydney Office - GPO Box 2506, SYDNEY New South Wales 2001 Australia
Telephone: Melbourne Office - +61 3 9629 3709 Sydney Office - +61 2 9233 2600
Facsimile: Melbourne Office - +61 3 9629 3217 Sydney Office - +61 2 9233 3044
Email: wcl@computerlaw.com.au Internet: http://www.computerlaw.com.au

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LEGAL CONSIDERATIONS FOR INFORMATION SYSTEMS MANAGERS - DISASTER RECOVERY

SOFTWARE LICENSING

  • The software you use
    • Do you have the correct number of users as per your licensing agreement?
    • Is all software on your system licensed? Employers may be liable if they allow employees to use unlicensed software on the employer's information systems.
    • Do you conduct regular software audits to detect unlicensed software?
    • Do you store your software in a secure manner if this is required by your licensing agreement?
    • How easy is it for third parties to gain access to and copy the licensed software?
    • Escrow for source code to ensure the source code is available for continued use and development if the developer goes into liquidation or if the business is dissolved.
  • The software you develop
    • Who owns the intellectual property - you or your contractors?
    • What are the terms of your licence to use the software if the intellectual property is not yours?
      • exclusive or non-exclusive licence
      • distribution and on-sell opportunities
      • intellectual property indemnity from the software developer
    • Considerations of ownership of the materials which you supply to customers.
      • ie. Library Code; Repositories
    • Intellectual property infringement

TRADE PRACTICES ACT

  • Misleading and Deceptive Conduct
  • Sponsorship

SOFTWARE FAULTS

  • The software you use
    • Limitation of Liability clauses
      • Too broad?
      • Trade Practices Act
    • Reasonably foreseeable loss and damage
    • Negligence
    • Record all incidents of errors, time spent and train staff in error reporting and rectification procedures
    • Know your reporting obligations under your warranties and performance guarantees
    • Consider if there was a fatal error in the software.
    • Consider recovery options
  • The software you develop
    • As above
    • Maintain detailed notes of all complaints, including:
      • the time and date of the fault
      • the symptoms of the fault
      • has the operation worked before? If so, what has changed?
      • the operating system including release levels and update levels
      • a general description of the fault, including what happened before, during and after the fault
      • the program(s) running at the time of the fault (including release and update levels)

INTRANET & INTERNET

  • E-mail
    • Courts will admit e-mail as evidence.
      • Employees need to be briefed as to what is acceptable use and the consequences of a breach of the e-mail policy
      • Contact by e-mail has been found to determine the legal jurisdiction for contractual disputes. E-mail needs to be considered to be the same as formal written correspondence in business transactions.
    • Privacy issues
    • Defamation
      • Dafamatory remarks posted to a bulletin board etc. can have legal ramifications, there should be a policy in place, which is explained to all employees, regarding the content of e-mail messages.

INTELLECTUAL PROPERTY & CONFIDENTIAL INFORMATION DEEDS

  • Every employee and contractor should be requested to assign intellectual property and to sign a confidential information deed whenever possible.
    • An assignment of copyright is not valid unless in writing
    • These agreements will protect the employer when an employee or contractor leaves, possibly to work for a competitor by ensuring that intellectual property cannot to taken or disclosed to your competitors.

OUTSOURCING

  • Points to consider:
    • Assignment of copyright
    • Intellectual Property indemnity
    • The terms of any software licence

STEVE WHITE
WHITE SW COMPUTER LAW
NOVEMBER 1997

www.computerlaw.com.au © White SW Computer Law 1997 This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquiries and seek appropriate legal advice.


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