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© ANDREW CHRISTIE[*] [**] 1996
In 1995, the Australian Copyright Law Review Committee published its Final Report on Computer Software Protection. The Report considers many complex issues concerning copyright protection for computer programs, including ownership and duration of rights, the applicability of moral rights and the need for defences to infringement by decompilation. In addition, the Report deals with the need for protection of subject matter related to computer programs, such as screen displays, multi-media works and databases. In this article, the author summarises and critically evaluates the recommendations of the Report on these issues. The author also identifies and discusses the lessons to be learnt from this review process for the future reform of Australian copyright law.
The Copyright Law Review Committee’s Final Report on Computer Software Protection[1] (‘Report’) is an impressive document which contains the results of one of the most difficult references entrusted to the CLRC over the last 20 years. During the reference the CLRC consulted widely, and as a result was able to take into consideration a range of industry and academic perspectives. The Report covers a wide span of matters relating to computers and software, and contains a clear and largely well reasoned set of recommendations.
The significance of the Report is not easily overstated. Because the issues addressed by the Report are very specific and often technical in nature, and because the deliberations undertaken in producing the Report were wide-ranging, it seems reasonable to think that many of the Report’s recommendations will be adopted by the government with little further review. It is therefore important that interested parties have some understanding of precisely what the CLRC proposes and of the implications of its proposals being adopted.
The Report deals with an array of issues concerning copyright protection for computer programs, such as the appropriate form and scope of protection, the preferable economic rights of the copyright owner, the desirable moral rights of the author, and the necessary exceptions and defences to infringement. As well, the CLRC addresses the question of the appropriateness of copyright protection for subject matter related to computer programs, namely screen displays, multi-media productions, hypertext links, computer-grenerated works and computer databases. This article provides a summary and a critique of the main recommendations contained in the Report in relation to these matters. In addition, the article identifies the characteristic features of the reform process adopted by the CLRC in relation to this and other recent references, and considers whether this approach can be maintained in the comprehensive review of the entire Australian copyright legislation currently being undertaken by the CLRC.
The CLRC recommends that computer programs continue to be protected as ‘literary works’ under the Copyright Act 1968 (Cth) (‘Copyright Act’).[2] This recommendation is consistent with Australia’s international obligations under article 10(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’), a part of the General Agreement on Tariffs and Trade (‘GATT’) of 1994.[3] Whilst serious reservations can be, and have been, expressed about the desirability of those obligations,[4] it is accepted that for all practical purposes, the issue of which particular legal regime should be adopted for protecting computer programs became removed from the remit of the CLRC upon Australia becoming a signatory to the GATT.
The effect of Australia’s accession to the TRIPS Agreement was such that the CLRC’s focus of concern shifted from the form of protection conferred upon computer programs to its scope. Two issues arise in this regard: first, what is a ‘computer program’; and secondly, what is a ‘computer’?
In paragraph 6.32 of the Report, the CLRC recommends the deletion of the current definition of ‘computer program’ under section 10(1) of the Copyright Act, and its replacement with the definition of ‘computer program’ found in the US legislation, being ‘a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result’.[5] This recommendation seems unproblematic. What is problematic, however, is the CLRC’s failure to define the thing in relation to which the statements or instructions that comprise a computer program are directed - that is, the computer itself.[6] That failure could, in the future, lead to an unlimited definition of ‘computer’ as encompassing any device capable of processing instructions, regardless of whether its capabilities could be described as digital or otherwise, and indeed irrespective of whether it would be considered to be within the current common conception of a computer. The dangers of leaving ‘computer’ undefined have been averred previously.[7] It is submitted that the disadvantages that flow from the risk of such a broad definition greatly outweigh the advantages to be gained from the flexibility of leaving that term undefined.
The CLRC recommends that the existing principles relating to ownership[8] and duration[9] of copyright in computer programs remain unchanged. It follows in relation to ownership that where a computer program is made in the course of an employment relationship under a contract of service or apprenticeship, copyright in the program vests in the employer rather than the author.[10] By contrast, where a computer program is made by an independent contractor in pursuance of the terms of a contract for services, copyright in the program will remain with the author.[11]
More contentious than the retention of these principles of ownership is the CLRC’s recommendation that authors of computer programs be entitled to the same duration of protection as authors of other literary works. A duration of protection comprising the life of the author plus fifty years seems excessive in the context of computer programs, although the CLRC’s inability to abandon the literary work regime of protection makes this result inevitable.
The Report contains recommendations regarding both the economic and moral rights of authors of computer programs.
In relation to the economic rights of the owner of copyright in a computer program, the CLRC makes four main findings. The first is that computer programs should attract the same exclusive rights as apply to the other types of literary works under section 31 of the Copyright Act.[12] The second finding concerns the CLRC’s rejection of the need for special protection for the ‘look and feel’ of computer programs.[13] This is, it is submitted, a sensible approach for the reasons noted in the Report itself, which include the uncertainty surrounding the meaning of ‘look and feel’, and the absence of any justification for its treatment in a particular way. The third of the CLRC’s findings in relation to authors’ economic rights accommodates Australia’s duty under TRIPS[14] to include a rental right within the bundle of economic rights conferred upon literary works.[15] The fourth finding concerns the rejection of a lending right for authors of computer programs.[16] Overall, the CLRC’s recommendations regarding authors’ economic rights are uncontentious, and comprise little change other than as required by accession to the TRIPS Agreement.
The CLRC’s findings in relation to the moral rights of authors of computer programs are more interesting, and in particular reflect its reluctance to descend from the fence and assume a position on either side of the moral rights debate. The most important recommendations in this section of the Report are that computer programs should be treated in the same way as other literary copyright works, and that the current circumstances in Australia preclude the need for a regime of express moral rights.[17] The Report does, however, make reference to the terms and scope of the Federal Government’s proposal[18] to recognise the moral rights of creators where such recognition is ‘reasonable’ in all the circumstances.[19] In this context the CLRC notes the difficulty of determining what is ‘reasonable’ in respect of computer programs, before advancing a construction of the Government’s proposals as being limited, in any case, to literary works other than computer programs.[20] This construction, which appears to be supported by an express reference in the Moral Rights Discussion Paper,[21] is in this author’s opinion the more sensible construction, given the very different nature of computer programs when compared with other kinds of literary works. The CLRC’s earlier recommendation that computer programs be subject to the same grant of exclusive rights as all other types of literary work ignores this difference, and is difficult to reconcile with the CLRC’s recognition elsewhere in the Report of the peculiar nature of computer programs.[22]
The CLRC recommends that express provision be made in the Copyright Act for three main exceptions from the exclusive rights of the owner of copyright in a computer program. These exceptions relate, respectively, to necessary reproduction, decompilation, and parallel importation of computer programs and manuals.
The first exception from infringement proposed by the CLRC is that referred to herein as ‘necessary reproduction’, and which encompasses both reproduction that is reasonable or necessary for the normal use of the computer program[23] and back-up copying.[24] The sense and necessity of the first of these necessary reproduction defences is best illustrated by highlighting some of the main activities it excludes from the scope of copyright infringement. Such activities include the reproduction of a computer program in the course of its execution, and the copying of a program from a floppy disk to hard disk for reasons of efficiency or necessity. Similarly, the CLRC’s recommendation that the unauthorised reproduction of a computer program as a result of backing-up data or other material (including the program itself) be excluded from the scope of copyright infringement is difficult to refute. The extension of that exclusion to cover both licensees and copyright owners,[25] but not third party maintainers,[26] also seems justifiable, as undoubtedly is the CLRC’s rejection of the submission that the defence of ‘backing-up’ be subject to the copyright owner’s right of express negation.[27] Its recognition, however, of an exception to that rejection in respect of technological negations - that is, of attempts by the copyright owner to lock the computer program against back-up copying[28] - is surprising and, it is submitted, is inconsistent with the CLRC’s other findings in this area.
The second and most contentious exception to infringement considered in the Report is that of decompilation. The CLRC’s recommendations in this regard concern the circumstances in which decompilation should and should not support a defence to copyright infringement in respect of computer programs. In relation to the former, the CLRC identifies two circumstances in which decompilation should be permitted as a defence to an action for copyright infringement. Its findings in this regard are consistent with the approach of the European Union,[29] and comprise a sensible resolution of the many difficult issues that were argued exhaustively before the CLRC by a range of interested parties. Rather than attempting to reinvent new justifications for its proposals, the CLRC takes the preferable approach of summarising and adopting the conclusions reached by the European Union on this issue.
The CLRC recommends that a defence to copyright infringement be provided in respect of the act of decompilation of a computer program where it is necessary to achieve ‘interoperability’.[30] In relation to this proposal the CLRC makes three important points. First, the defence should be extended beyond the traditional scope of achieving interoperability between the protected program and another computer program, to encompass achieving interoperability between the protected program and hardware.[31] This extension of the defence is to be welcomed, given the uncertainty, and indeed increasing erosion, of the distinction between hardware, software and firmware, and the problems that inevitably arise when legal doctrine constricts itself to those outdated categories. The CLRC’s second finding is also reasonable, and concerns the requirement that the information necessary to achieve interoperability be otherwise unavailable at the time of decompilation.[32]
The third and most problematic of the CLRC’s findings in relation to the decompilation for interoperability defence relates to the restriction of the defence to situations involving the ‘decompilation’ - as opposed to ‘reproduction’ - of a computer program.[33] The CLRC defines ‘decompilation’ to mean reproduction in the process of ‘working back from the object code of a computer program to a version of the source code’.[34] It is submitted that this definition is unduly restrictive, in that it excludes many instances of reproduction that are necessary to achieve interoperability, but which do not occur in the process of working back from object code to source code. Because such reproductions are not within the definition of decompilation, they would not be excepted from infringement under the proposed defence, even though they would appear to be within the spirit of the defence. An example of such a reproduction that is not covered by the decompilation defence is the incorporation into a new program of a small part of the protected program’s object code to enable data file format compatibility. The incorporation of this object code is a reproduction of the protected program, but is not within the decompilation defence because it does not occur as part of the process of ‘working back from object code to a version of the source code’.
Concern about this undue limitation of the decompilation defence was expressed to the CLRC by the Law Council of Australia, which argued that any reproduction for the purposes of achieving interoperability, and not just reproduction involved in the process of decompilation, should be permitted. Whilst the CLRC appears to accept expressly the submission of the Law Council of Australia on this point,[35] its formal recommendation retains the word ‘decompilation’ rather than ‘reproduction’.[36] It is to be hoped that such retention is the result of an editing error rather than a failure by the CLRC to grasp the essence of this important point.
The CLRC also recommends that a defence to copyright infringement be provided in respect of the act of decompilation of a computer program for the purpose of correcting errors in the program.[37] This defence is to be limited in a number of respects, and in particular applies only where an error free version of the program cannot be obtained with a reasonable time at a normal commercial price.[38] The limitations on the proposed defence seem reasonable. However, it appears that this proposed defence suffers from the same flaw as does the interoperability defence - namely, it is undesirably limited to reproduction that occurs as part of ‘decompilation’ of the protected program, rather than any reproduction necessary to correct errors in the protected program.
The CLRC not only identifies two specific acts of decompilation which it considers should be excepted from infringement, it identifies five other acts of decompilation which it recommends should not constitute an exception to infringement by reproduction. The following are these five acts of decompilation:
(i) Decompilation for the purpose of enhancing the performance of a computer program;[39]
(ii) Decompilation for networking a computer program;[40]
(iii) Decompilation for porting a computer program to other platforms;[41]
(iv) Decompilation for circumventing a program lock;[42] and
(v) Decompilation for the purpose of understanding the underlying techniques of a computer program.[43]
The decompilation of a computer program for the purpose of enhancing its performance comes close to changing the essential nature of the program itself and, as a result, probably should be regarded as an act within the exclusive rights of the owner of copyright in the program. Similarly, decompiling a computer program for the purpose of distributing it over a network is akin to creating a new and marketable product, which it can be argued might reasonably be expected to be bought or licensed from the copyright owner rather than created without his or her authority. The third and fourth examples of decompilation identified by the CLRC as inappropriate for exemption from copyright infringement can also be justified, on similar grounds.
The same cannot, however, be said in respect of the decompilation of a computer program for the purpose of understanding its underlying techniques. The CLRC’s view that such an act constitutes an infringement of the copyright in the computer program is irreconcilable with the traditional analysis of the idea/expression distinction within Australian copyright law. Pursuant to that analysis, copyright protection (and hence infringement) is limited to the expression of ideas rather than the ideas per se. Assuming that analysis to be correct,[44] it seems irrefutable that the underlying techniques of a computer program comprise its ‘ideas’ and that, as a result, any copying of the underlying techniques of a computer program is not an act of infringement of copyright in the computer program itself.
A problem arises, however, due to the fact that the nature of a computer program is such that the ideas of a computer program cannot be ascertained without consequently reproducing the computer program itself. This is in contrast to the ideas of a more traditional literary work, such as a novel, which can be ascertained without reproducing the literary work itself, such as through the non-infringing act of reading. Why should it be impermissible to ascertain the ideas comprised in a computer program when it is accepted that is should be, and is, permissible to ascertain the ideas comprised in a traditional literary work? It is submitted that there is no good policy reason for distinguishing between these two scenarios, and indeed that there is a good policy reason for having a consistent approach - namely, that there should be no indirect protection for what is not directly protected by copyright.
The argument against excluding decompilation for the purpose of understanding underlying techniques from the general decompilation exception was made forcefully in a submission by the Law Council of Australia to the CLRC. Unfortunately, the CLRC rejected the argument.[45] It is submitted that the CLRC’s reasons for doing so are not persuasive and, more importantly, that the CLRC was wrong to do so.
The third and fourth defences considered by the CLRC in its Report both concern the act of parallel importation of a computer program. The term ‘parallel importation’ is used here to refer to an importation into Australia for commercial purposes of an article (the ‘parallel import’) embodying subject matter protected by copyright, the making of which occurred outside Australia by or with the consent of the owner of copyright in the country in which it was made.[46]
Section 37 of the Copyright Act currently provides that parallel importation is an infringement of copyright in a literary, dramatic, musical or artistic work, and hence in a computer program, if the importer knew or ought reasonably to have known that the making of the article would, if the article had been made in Australia by the importer, have constituted an infringement of copyright. Section 38 provides, in addition, that commercial dealing in a parallel import is an infringement of copyright if the person dealing in it knew or ought reasonably to have known that the making of the article would have constituted an infringement of copyright if it had been made in Australia by the importer. Pursuant to section 44A, however, neither provision applies to the parallel importation, in certain prescribed circumstances, of books.
The issue of parallel importation of computer programs and computer program manuals has been the subject of a number of reviews by copyright law reform bodies in the recent times,[47] and will not be considered here in any detail. For the purposes of this article, it is sufficient to note that in its Report the CLRC recommends that sections 37 and 38 continue to apply to computer programs[48] (including second hand computer programs[49]), as they do for other literary works, but that the continuation of the application of these provisions should be reviewed in three years time.[50] It also recommends that computer program manuals be treated in the same way as other books,[51] thereby making their importation without the authority of the copyright owner permitted in those circumstances prescribed in section 44A. In so doing, the CLRC essentially maintains its earlier position on the issue of parallel importation of computer programs,[52] despite a contrary view having been adopted by the Prices Surveillance Authority in the intervening period.[53]
Section 24(2) of the Circuit Layouts Act 1989 (Cth) (‘the Circuit Layouts Act’) provides a defence to copyright infringement in cases involving the importation of an integrated circuit containing a reproduction of a copyright work, such as a computer program. This is not the forum in which to undertake a detailed analysis of that provision.[54] It is sufficient to note that the CLRC recognises, as have others,[55] the problems which result from the Australian courts’ current construction of section 24(2),[56] and attempts a creditable although ultimately incomplete resolution of those problems. To this end the CLRC makes two main recommendations. First, it suggests the introduction into section 24(2) of a distinction between the importation of an integrated circuit for the principal or sole purpose of importing the copyright work contained in it and the importation of an integrated circuit for some other principal or sole purpose (eg for the purpose of importing an article that is not the copyright work).[57] In the CLRC’s view, the parallel importation defence provided by section 24(2) should be limited to the latter of these situations - that is, to situations involving the importation of an integrated circuit for the principal or sole purpose of importing an article that is not the copyright work contained in the circuit.[58] This is a sensible solution. Whilst problems will inevitably arise in determining the primary purpose of an importation of an integrated circuit, such problems are no stranger to the law and do not detract from the validity of the CLRC’s recommendation.
The second recommendation made by the CLRC in relation to section 24(2) of the Circuit Layouts Act concerns the current requirement that, for the defence in section 24(2) to apply, the copying of the copyright work into the imported circuit not be an infringement of copyright. The problem in relation to this requirement arises from the fact that acts committed in respect of a copyright work outside of Australia will never amount to an infringement of copyright under Australian law, with the result that the proviso contained in section 24(2) can never be satisfied.[59] In resolving this problem, the CLRC suggests the introduction of the perspective of the overseas copyright owner in the determination of the issue of infringement.[60] Thus amended, section 24(2) would not apply where the copying of the copyright work into the imported integrated circuit was done without the consent of the copyright owner in the place where the integrated circuit was manufactured.
Whilst this amendment goes most of the way to rectifying the current flaws of section 24(2) of the Circuit Layouts Act, it fails to address the situation where the overseas owner of copyright in a computer program and the Australian owner or exclusive licensee of copyright in the computer program are different, and have conflicting wishes regarding the importation of an integrated circuit in which that program is contained. For example, in the situation where the circuit was imported for the primary purpose of importing an article and not the computer program contained therein, if the overseas owner of copyright in the program consented to the incorporation of the program in the circuit but the Australian owner or exclusive licensee of copyright in the program did not, the Australian owner or exclusive licensee would have no redress against the importation of the circuit under the CLRC’s proposals.
The CLRC considers the appropriateness of copyright protection for five further types of subject matter related to computer programs, namely screen displays, multi-media productions, hypertext links, computer-generated materials, and databases. In addition, it addressed the question of whether there should be sanctions against the manufacture and commercial exploitation of devices designed to circumvent the operation of mechanisms preventing the unauthorised reproduction of computer programs. The CLRC’s recommendations on each of these issues is discussed below.
In relation to screen displays, the CLRC recommends against the introduction of a separate form of protection.[61] It deals with screen displays that are displays of a work stored in and retrieved from the computer’s memory separately from screen displays that are instead displays generated by the computer program operating on data. In relation to a display of a work stored in the computer’s memory, the CLRC concludes that there should not be separate protection of the display. Either the work itself is protected by copyright or it is not. If it is, there is no need for separate protection for a display of it; if it is not, there is no justification for protecting a display of it.[62]
The CLRC finds the issue more difficult in relation to a display produced by the computer program operating on data. It notes that there is doubt as to whether such a thing would constitute either an artistic work or a cinematograph film.[63] The CLRC concludes that there should be no separate protection for these displays, essentially because there does not appear to be any obvious justification in giving such protection.[64] In the absence of a clear case for separate protection, this conclusion seems wise.
The CLRC considers whether a ‘multi-media production’ should be accorded express protection under the Copyright Act. In doing so, it interprets the phrase ‘multi-media production’ to mean a collective production combining a number of items of copyright material comprising literary and artistic works, sound recordings and cinematograph films. It concludes that a multi-media production is in fact protected under the Copyright Act as a cinematographic film, since the definition of that category of subject matter embraces the combination of moving pictures and recorded sounds. The inclusion of text and still images does not serve to deprive a multi-media production of protection under the definition of cinematograph film any more than does the inclusion of credits or other text and still images in a conventional film. Accordingly, the CLRC recommends that there should not be created a separate category of protection for multi-media productions.[65] It does, however, recognise that it is stretching the generally understood meaning of ‘cinematograph film’ to apply it to a multi-media production, and so recommends that consideration be given to renaming that category along the lines of ‘audiovisual work’.[66]
It is submitted that the CLRC’s conclusions on this issue are sensible. The view that multi-media productions generally fall within the definition of cinematograph film seems correct, and the recommendation that that category of protected subject matter be re-named to more accurately reflect its contents is uncontroversial.
The CLRC received very few submissions regarding hypertext links. This is understandable, given that this subject matter has not yet come before the courts, and that it is indeed somewhat difficult to foresee precisely the way in which a copyright dispute concerning this subject matter might arise. As a result, the rationale, if any, for protecting this subject matter by copyright is far from clear. The CLRC’s decision to make no recommendation in relation to this subject matter was, in these circumstances, a wise one.[67]
An interesting recommendation is, however, made in relation to computer-generated material. Moving on from the view expressed in its Draft Report,[68] the CLRC concludes in the Report that a distinction can and should be drawn between materials created with the assistance of a computer program and materials created by a computer program in circumstances where there is no human author.[69] In relation to the former materials, no special provisions are necessary; copyright protection for these materials should be determined using the same principles as are used for works created by traditional means.[70]
In relation to the latter materials, however, the CLRC does recommend the introduction of special provisions. Since these materials are, by definition, lacking a human author, they would not be protected under Part III of the Copyright Act as it currently stands. Because the CLRC feels that such materials should be capable of attracting copyright protection, it recommends the inclusion of a new category of subject matter in Part IV of the Act, to be titled ‘computer-generated material’ and to be defined in the manner described above.[71] The author of such material, and hence the prima facie owner of copyright in it, should be deemed to be the person by whom the arrangements necessary for the creation of the material are undertaken.[72] The length of protection in respect of such material should be 25 years from the date of its production.[73]
The CLRC gives detailed consideration to the adequacy of protection for computer databases. To the extent to which a computer database constitutes an original compilation, it will be protected under the Copyright Act due to the express inclusion of compilations in the definition of ‘literary work’.[74] The CLRC recommends little change to the present system of protecting such databases. In particular, it advocates the retention of the current definitions of ‘literary work’ and ‘compilation’,[75] the current principles of authorship[76] and ownership,[77] the current duration of copyright protection for Part III works,[78] and the current exclusive rights for literary works.[79] The CLRC does, however, recommend the express exclusion of screen displays of the contents of databases from the definition of ‘reproduction’[80] and ‘public performance’[81] under the Copyright Act, and supports ‘in principle’ the view of the Copyright Convergence Group[82] regarding the extension of the current broadcasting right to encompass a general right of transmission to the public, where ‘to the public’ includes any transmission for commercial purposes.[83]
The CLRC also considers whether computer databases which do not constitute original compilations, and hence which are not protected under the Copyright Act as literary works, should nevertheless receive some intellectual property protection. It notes that a case can be made for giving sui generis protection to prevent unfair extraction of the contents of a database,[84] along the lines of the (then) draft proposal for a Directive in the European Union.[85] The CLRC concludes that any recommendation for introduction of such protection in Australia should await the outcome of the deliberations in the European Union[86] (which has since occurred[87]). This recommendation is a wise one, reflecting as it does the CLRC’s concern to ensure that there be the same sort of harmonisation in this area as it recommends there should be in the area of decompilation.
The CLRC recommends the conferral, upon copyright owners and exclusive licensees, of an express right to prevent the commercial manufacture, importation and distribution, and the possession for commercial purposes, of devices designed to circumvent the operation of ‘locks’ and other mechanisms applied to computer programs to prevent their unauthorised reproduction.[88] This recommendation is limited to the introduction of a civil right of action. Although encouraged by at least one submission to do so,[89] the CLRC did not take the further step of recommending that these activities be made criminal offences.
Whilst the motive behind the CLRC’s recommendation is understandable, it might be queried whether it is appropriate to include this non-copyright civil right of action in the Copyright Act, rather than in some other legislation. It is also noted that care will be needed in the precise wording of the proposed right of action, to ensure that it does not catch the sale and use of devices circumventing copy-protection mechanisms that prevent the making of a reproduction that would not in fact constitute an infringement of copyright - such as, for example, where the reproduction is permitted under a fair dealing defence.
In February 1995, the Commonwealth Minister for Justice reconstituted the membership of the CLRC, and issued it with a comprehensive new reference. The terms of reference are broad: to review and simplify the Copyright Act. In particular, this reference requires the CLRC to consider the feasibility of subsuming the existing exclusive rights of the copyright owner into a smaller number of broad-based rights, and the desirability of maintaining the existing distinctions between different categories of protected subject matter having regard to the impact of technological developments on the ways in which such materials are created and used. The reconstituted CLRC is to deliver its final report on all these matters by 30 November 1997.
The fact that the emphasis underlying this new reference is on review and simplification of the legislation raises an important issue regarding the lessons which need to be learnt from the conduct of the reference that lead to the Report discussed above. It took the former CLRC six and a half years to deliver its well reasoned and substantially correct findings in respect of one specific corner of the copyright field -computer software and related products. Is it possible for the new CLRC to deliver, in a period of less than three years, meaningful advice concerning the simplification of the entire Copyright Act? Clearly, the task set for the new CLRC is very challenging. It is submitted that successful completion of this reference will be likely only if the CLRC adopts an approach to law reform different from the one it adopted in relation to the reference on computer software.
What should be that different approach? To date, the CLRC’s approach to copyright reform has been incremental, in the sense of considering, and often recommending, the introduction of new categories of protected subject matter, new exclusive rights of the copyright owner, and new exceptions and defences to infringement. That is to say, it has essentially sought to add new pieces to the copyright jigsaw puzzle. It is submitted that whilst this approach has served Australia relatively well in the past, it has resulted in a very complex piece of legislation. It is of course the complexity of the current legislation that has led to the CLRC’s current mandate to simplify the Copyright Act. It must follow, therefore, that the simplification reference demands the opposite approach to incremental reform - namely, fundamental reform. By that it is meant an approach which revisits and indeed reconceptualises the basic principles of the copyright regime. Only by doing so will it be possible to reduce, rather than add to, the total number of pieces that comprise the copyright puzzle.
[*] BSc, LLB (Hons) (Melb), LLM (Lond), PhD (Cantab); Senior Lecturer in Law, University of Melbourne.
[**] This article is an expanded version of a paper delivered by the author at a conference organised by the Intellectual Property Society of Australia, entitled ‘Protection of Computer Software and Multi-media: Recent Developments and Trends’, held at the Regent Hotel, Melbourne, 28 July 1995. Papers delivered at the conference are published in ‘Intellectual Property Forum’, the Journal of the Intellectual Property Society of Australia, issues 26 and 27.
[1] Copyright Law Review Committee, Computer Software Protection (April 1995, ISBN 0-642-20830-1).
[2] Report, rec. 2.03, discussed in para. 4.14.
[3] Article 10(1) of the TRIPS Agreement provides that ‘[c]omputer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)’.
[4] See, e.g., Christie, ‘Designing Appropriate Protection for Computer Programs’, [1994] 11 European Intellectual Property Review 486.
[5] Copyright Act 1976 (US) s 101.
[6] Report, para. 6.38.
[7] See, e.g., Houghton, ‘Computer Software Protection’, (1993) 4 Journal of Law and Information Science 242, 242-243; and Christie, ‘Re-Writing the Rules on the Form of Protection for Computer Software’, (1993) 4 Journal of Law and Information Science 224, 236.
[8] Report, rec. 2.05, discussed in paras 7.05 and 7.09.
[9] Ibid., rec. 2.06, discussed in paras 8.03 and 8.10.
[10] Copyright Act, s. 35(6). This principle is subject, of course, to there not being an agreement to the contrary: Copyright Act, s. 35(3).
[11] Copyright Act, s. 35(2). The position will be different, of course, if the parties have an agreement to the contrary effect: Copyright Act, s. 35(3).
[12] Report, para. 2.07.
[13] Ibid., rec. 2.09, discussed in para. 9.42.
[14] TRIPS Agreement, arts 11 and 14(4).
[15] Report, rec. 2.12, discussed in para. 9.85.
[16] Ibid., rec. 2.13, discussed in para. 9.92.
[17] Ibid., rec. 2.14, discussed in para. 9.99.
[18] See Discussion Paper: Proposed Moral Rights Legislation for Copyright Creators (June 1994, ISBN 0-642-20810-7) (‘Moral Rights Discussion Paper’).
[19] Report, para. 9.97.
[20] Ibid., para. 9.98.
[21] Moral Rights Discussion Paper, 37: ‘There would be no specific exceptions (apart from computer programs) ... ’.
[22] See, for example, the general approach adopted by the CLRC in respect of exceptions and defences to infringement of computer programs, discussed in Chapter 10 of the Report.
[23] Report, rec. 2.15, discussed in para. 10.12.
[24] Ibid., rec. 2.17, discussed in para. 10.15.
[25] Ibid., rec. 2.16, discussed in para. 10.14.
[26] Ibid., rec. 2.21, discussed in para. 10.20.
[27] Ibid., rec. 2.18, discussed in para. 10.16.
[28] Ibid., rec. 2.19, discussed in para. 10.17.
[29] See generally, The Council of the European Communities Directive on the Legal Protection of Computer Programs - 14 May 1991 (91/250/EEC).
[30] Report, rec. 2.23, discussed in para. 10.58.
[31] Ibid., rec. 2.23, discussed in para. 10.58.
[32] Ibid., rec. 2.23(b).
[33] Ibid., rec. 2.23.
[34] Ibid., para. 10.22.
[35] Ibid., para 10.53.
[36] Ibid., para 2.23.
[37] Ibid., rec. 2.27.
[38] Ibid., rec. 2.27(a).
[39] Ibid., rec. 2.24, discussed in para. 10.59.
[40] Ibid., rec. 2.25, discussed in para. 10.62.
[41] Ibid., rec. 2.26, discussed in para. 10.68.
[42] Ibid., rec. 2.29, discussed in para. 10.94.
[43] Ibid., rec. 2.28, discussed in para. 10.89.
[44] For a short, but reasonably representative, list of articles on the theme of the correctness or otherwise of the idea/expression distinction in copyright law, and the application of that distinction to computer programs, see footnotes 35 and 36, respectively, in Christie, ‘Re-Writing the Rules on the Form of Protection for Computer Software’, (1993) 4 Journal of Law and Information Science 224.
[45] See Report, paras 10.88 and 10.99.
[46] A ‘parallel import’ is thus to be distinguished from a ‘pirate import’, which is an article embodying subject matter protected by copyright, the making of which occurred outside Australia without the consent of the owner of copyright or his or her licensee in the country in which it was made.
[47] See Copyright Law Review Committee, The Importation Provisions of the Copyright Act 1968 (September 1988); and Prices Surveillance Authority, Inquiry into the Prices of Computer Software: Final Report (December 1992).
[48] Report, rec 2.39(a), discussed in para. 11.96.
[49] Ibid., rec. 2.39(d), discussed in para. 11.105.
[50] Ibid. rec 2.39(b), discussed in para. 11.96.
[51] Ibid. rec 2.39(c), discussed in para. 11.103.
[52] Copyright Law Review Committee, The Importation Provisions of the Copyright Act 1968 (September 1988).
[53] Prices Surveillance Authority, Inquiry into the Prices of Computer Software: Final Report (December 1992).
[54] The provision is considered in detail in Christie, Integrated Circuits and their Contents: International Protection (1995, Sweet & Maxwell, London and The Law Book Company, Sydney), pp 172-177.
[55] Ibid. See also Hunter, ‘Limitations on the Proposals for Reform of Non-Literal Copyright and Reverse Engineering of Computer Software’, (1993) 4 Journal of Law and Information Science 247, 258-262.
[56] Report, paras 10.135-10.137.
[57] Ibid., rec. 2.36, discussed in para. 10.142.
[58] Ibid., rec. 2.36(a).
[59] A qualification should be added here. It is theoretically possible for the proviso to be relevant and hence possibly satisfied, in the case of the integrated circuit being made in Australia, exported from Australia and then reimported. It is considered that this possibility is so unlikely to occur in practice that it can be said, for all intents and purposes, that the section 24(2) proviso can never be satisfied.
[60] Report, rec. 2.37, discussed in para. 10.144.
[61] Ibid., rec. 2.10, discussed in paras 9.43 to 9.48.
[62] Ibid., para. 9.44.
[63] Ibid., para. 9.45.
[64] Ibid., para. 9.47.
[65] Ibid., rec. 2.63(a), discussed in para. 14.87. This is consistent with the decision of the Supreme Court of South Africa in Nintendo v Golden China TV-Game Centre (1993) 28 IPR 313, to the effect that a computer game is entitled to copyright protection as a cinematograph film under the South African copyright legislation, which contains a definition of cinematograph film similar to that in the Australian Act.
[66] Ibid., rec. 2.63(b), discussed in para. 14.87.
[67] Ibid., rec. 2.62, discussed in para. 14.82.
[68] Copyright Law Review Committee, Draft Report on Computer Software Protection (June 1993, ISBN 0-642-19361-4), rec. 2.37, discussed in Chapter 13.
[69] Ibid., para. 13.03.
[70] Ibid., para. 13.07.
[71] Ibid., recs 2.42(a) and (b), discussed in paras 13.17 and 13.18.
[72] Ibid., rec. 2.42(c), discussed in para. 13.22.
[73] Ibid., rec. 2.42(d), discussed in para. 13.23.
[74] Copyright Act, sec. 10(1).
[75] Report, rec. 2.57, discussed in para. 14.64.
[76] Ibid., rec. 2.59, discussed in para. 14.72.
[77] Ibid., rec. 2.60, discussed in para. 14.73.
[78] Ibid., rec. 2.58, discussed in para. 14.65.
[79] Ibid., rec. 2.43, discussed in para. 14.11.
[80] Ibid., rec. 2.52, discussed in para. 14.42.
[81] Ibid., rec. 2.55, discussed in para. 14.48.
[82] See generally, Copyright Convergence Group, Highways to Change - Copyright in the New Communications Environment (August 1994, ISBN 0-642-20816-6).
[83] Report, rec. 2.51, discussed in para. 14.40.
[84] Ibid., para. 14.75 to 14.80.
[85] Council of the European Communities, Amended Proposal for a Council Directive on the Legal Protection of Databases.
[86] Report, rec. 2.61, discussed in para. 14.80.
[87] The Council of European Union has now finalised and issued a Directive on the protection of databases: Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases (1996 OJ L l77, p. 20).
[88] Report, rec. 2.73, discussed in para. 16.42.
[89] Ibid., para. 16.40.
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