The moment an idea or creative concept is documented on paper or electronically it is automatically protected by copyright in Australia. Common works protected by copyright include books, films, music, sound recordings, newspapers, magazines and artwork.
In Australia, copyright law is governed by the Copyright Act 1968 (Cth) (Copyright Act), and is administered by the Department of Communications and the Arts.
How copyright applies to code
When new software is created in the form of code, it is protected by copyright as an original literary work. Software code does not have to have a literary quality to qualify as a literary work and therefore obtain copyright protection. The code also does not need to be ‘original’ in the sense that nobody has written similar code before. To qualify, authors need to demonstrate that they have used their skill and labour to create the software in question, without copying someone else’s work.
Other aspects copyright covers
Copyright also covers published materials accompanying software such as user documentation, website content and software user interfaces in the form of original text, images and layout.
How to gain copyright protection
Unlike trade marks, patents or designs, copyright does not require any form of registration. It exists automatically from the moment the work is created.
What copyright gives you
The owner of copyright in software has the exclusive right to:
- make copies of the software
- publish the software
- communicate the software to the public
- make adaptations of the software
- enter into a commercial rental arrangement with respect to the software
- license others to do any of the above.
Using software will often involve some kind of copying (such as installing software onto a device) or communication (for example, in the case of Software as a Service). Copyright enables the copyright owner to exercise control over what users can and cannot do with the software. This is usually expressed in the terms of the licence agreement with the user of the software.
Copyright in software is infringed where a person copies/reproduces, adapts or communicates the software without the licence or authority of the copyright owner. Other infringing acts include selling infringing copies or importing those copies to sell.
Limitations and exemptions
A limitation of copyright is that it does not protect ‘ideas’ but rather the specific form of expression of the protected content. This means that copying the basic idea or functionality of software is not infringing if it is achieved by a person writing different, independently created code. To protect the functionality of software in Australia, the copyright holder would need to apply for a patent with IP Australia.
In Australia, there are specific exemptions to infringement which apply to software. These include copies made in the process of running the software, making back-ups, and testing and correcting bugs. Other general copyright exceptions can also apply.
End-user licence agreements that contain terms which prevent these exempted activities might have limited or no legal effect under Australian law. The same terms might be enforceable in jurisdictions outside of Australia, so it is good practice to set clear expectations of what users can do with your software and when selling access to your software, make sure you have well drafted legal agreements in place.