copyright 1995 David B.Webber , Davies Collison Cave , Melbourne, Australia
Computer programs should continue to be protected under the Copyright Act 1968 ("the Act") as "literary works".
The definition of computer programs should be replaced by a definition that a computer program is "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result". This is the definition used in the U.S. Act.
No amendments should be made to establish additional protection for the "look and feel" of a computer program nor should there be any additional protection provided for screen displays.
The Act should be amended to make it clear that screen displays do not constitute a reproduction in a material form of works stored in computer memory. The Committee felt sufficient protection would be provided by a proposed transmission right for such works and that the browsing of data by display should not be inhibited.
The term "cinematograph film" should be replaced by a more appropriate term, such as "audiovisual work" which could clearly encompass cinematograph films and multimedia materials. This contrasts with the previous recommendations concerning the protection of screen displays. If protection for audiovisual works is adopted then moving screen displays with accompanying audio may be protected under this category.
The restrictions on parallel importation of computer programs should remain. The Committee has reversed its previous controversial recommendation that the restrictions be abolished. It now feels that abolition may give rise to an increase in the distribution of pirated software and that Australia's obligations under the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement may not be met. The Committee also had doubts on whether removal of the restrictions would reduce the price of computer programs.
Exceptions to the exclusive rights provided under the Act should include copying for normal use, backup copying and decompilation to achieve interoperability or error correction. Reverse engineering that includes decompilation should be prohibited except to the extent that it is required for interoperability and error correction or falls within the fair dealing provisions of the Act. The Committee felt that allowing reverse engineering would provide competitors, wishing to clone programs, with a free ride on the efforts of the original creator.
Decompilation to understand techniques should be governed by the fair dealing provisions of the Act, except in respect of commercial activities. The Committee felt that the subject matter protected under the Circuit Layouts Act 1989 is inherently different to that of computer programs, and did not accept that reverse engineering provisions similar to those of that Act should be provided for computer programs.
The reproduction and study of computer programs in the circumstances contemplated in Article 5(3) of the EC Directive on Computer Programs should be allowed. The Committee felt that a person having the right to use a computer program should be able to observe, study and test the program to determine its underlying ideas and any other elements excluded from protection.
The Act and the Circuit Layouts Act 1989 should be amended so as to allow copyright owners to control the importation of an integrated circuit where the purpose of importing the circuit is to import a copyright work. This would remove a current anomaly where parallel importation of computer programs on floppy disk and CD-ROM can be prevented, but not parallel importation of programs stored on an integrated circuit which is protected under the Circuit Layouts Act.
Protection be afforded to "computer-generated material" as a new class of subject matter. The material is that generated by a computer in circumstances such that there is no human author of the material. The author shall be the person who undertook the arrangements necessary for creation of the material. The term of protection is proposed to be 25 years from the year of creation.
The Act be amended so as that an employer will be guilty of an offence when found in possession of an article which the employer ought to have reasonably known is an infringing copy of a work. Penalties for a first offence for a person include a fine not exceeding $1500 or imprisonment for a period not exceeding 2 years.