New Bill allows software reverse-engineering for interoperability, testing and maintenance
The legislation, the Copyright Amendment (Computer Programs) Bill 1999, was introduced into Federal Parliament on 21 April 1999. The Bill provides that the copyright in a computer program is not infringed by the making of a reproduction or adaptation of the program if the reproduction or adaptation is made for the purpose of making interoperable programs or hardware, to correct errors or for security testing. The reproduction or adaptation must be made by or on behalf of the owner or licensee of the copy of the program used for making the reproduction or adaptation, and this copy of the program must not be an infringing copy.
The reproduction or adaptation must be made only to the extent reasonably necessary to obtain interface information, that is information necessary to enable the owner or licensee to make independently another program or an article to interoperate with the copied or adapted program or any other program. Any independent program so made must only reproduce or adapt the copyright program to the extent necessary for interoperability. However, this right to reproduce or adapt does not apply if the information is readily available from another source.
The reproduction or adaptation must be made only to the extent reasonably necessary to correct an error in the copied program that prevents it from operating as intended by its author or in accordance with its specifications. This is intended to cover errors such as the Y2K bug. This right to reproduce or adapt is to operate retrospectively from 23 February 1999, but does not apply if an error – free copy of the program is available within a reasonable time at an ordinary commercial price.
This immunity from copyright infringement is aimed at combatting the potential disruption to business and the community by computer hackers and viruses. More particularly the Bill permits reproduction or adaptation to the extent reasonably necessary to:
- test the security of the copied program or of a system or network of which the copied program is a part, or
- investigate or correct a security flaw in, or the vulnerability to unauthorised access of, the copied program or of a system or network of which the copied program is a part.
This right to reproduce or adapt is only available if the information resulting from the making of the reproduction or adaptation is not readily available from another source.
Other exceptions to infringement
The Bill also provides that the copyright in a computer program is not infringed by the making of a reproduction of the program in the course of:
- running a non-infringing copy of the program for normal use, provided this is not contrary to any condition of the licence accompanying the copied program when bought, and
- running a non-infringing copy of the program for studying the ideas behind the program and the way in which it functions.
In each case the running of the copy must be done by or on behalf of the owner or licensee of the copy.
Additionally the Bill enacts new provisions permitting the making of back-up copies of computer programs as security against loss, and also permits the periodical back-up copying of data for security purposes.
The exceptions to copyright infringement contained in the Bill cannot be excluded by agreement except in relation to the making of a copy in the course of running the program for normal use.