Volume 11 Issue 2

Accommodating Computer Software to Copyright Doctrine: defining the scope of copyright protection for software

ANNE FITZGERALD* AND CRISTINA CIFUENTES**

The first stage of copyright protection for computer software saw the enactment of legislation extending copyright to computer software, in the same category as literary works. The second stage has involved delineation of the appropriate scope of copyright protection for software which, as a functional and digital product, bears little resemblance to the literary works traditionally protected by copyright. In a series of cases, the Australian courts have made it clear that since copyright does not protect the function of software it is not an infringement to replicate non-literal elements such as functionality, provided it is achieved with independently written code and without copying of the expression of the original program. Limiting the scope of copyright protection in relation to literal copying of the program’s code has proved more difficult in the absence of a clear legislative direction to this effect. During the past year, the process of legislatively accommodating computer technology to copyright law has commenced, with the enactment of the Copyright Amendment (Computer Programs) Act 1999 (Cth) and the Copyright Amendment (Digital Agenda)Act 2000 (Cth). These statutes clarify the application of copyright law to computer software, introduce new exclusive rights and create several exceptions to the exclusive rights of software copyright owners.

** PhD(QUT); Sun Microsystems Research Labs, Palo Alto, Ca. And Department of Computer Science and Electrical Engineering, University of Queensland. Cristina.cifuentes@eng.sun.com