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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