Something I did this morning

Just an article I wrote for the boss:--

Software Licences: Things you need to know to get on the Net

The law of intellectual property has been challenged by almost every technological leap and bound that mankind has made since its’ creation more than 500 years ago. In particular, developments in information sharing and reproduction technologies such as the printing press, Xerox machine and videotape.

It will come as no surprise that the advent of the computer and internet has again shaken up the views of intellectual property lawyers from around the world. In recent times we have seen Napster[1], Kazaa and Grokster become household names, orders seeking extradition of criminal copyright infringers to the US and lengthy arguments in the High Court over the popular Playstation console[2].

This litigation is shaping how we view and control our proprietary copyright in a world where copying has become instantaneous, systemized and costless.

Despite the new conditions that we endure the Copyright Act continues to apply. The Copyright Act expressly states that exercising a right in copyright such as reproducing, adapting or communicating a copyright work to the public[3] is an infringement of copyright[4]. An infringer may avoid liability if they hold a licence. A licence is a permission or authorisation from the owner of a copyright work to exercise a right of copyright in the work[5]. The owner thus negates their own right to seek relief for an infringement and in return the owner may insist upon certain terms or conditions of use of the work.

The requirements of having a licence in a work does not cease when you login to your computer. It is incumbent on you and your client’s to take heed of the licenses that you give or receive.

The problem with the internet is that just about everything is subject to copyright protection and it is easier to click a button and download a program, image, sound recording or picture than to read all the terms and conditions. You may be downloading material and using it for infringing purposes, or even worse, incorporating those materials into your own products.

You must always remain aware that until you or your client has permission or rights to use a copyright work you will probably be infringing copyright.

Most licenses on the internet relate to downloadable computer programs and are known as click wrap licenses, that is, upon clicking the download key you will be entering into the agreement with the licencing party.

Generally a click wrap licence will restrict the licensee from performing anything with the computer program except storing it in their hard drive and running it through their micro processor, however, some variations of a click wrap licence may include:-

Shareware: a shareware licence applies to restricted programs which may be distributed to other people. Such programs may only work for a few days or may only feature a limited number of functions of the full program.

Freeware: a freeware licence applies to a complete and unrestricted program and allows you to use, distribute and copy the program as many times as you like. The only restriction on a freeware program is that you reproduce the program in full rather than taking certain parts of the code and using it in your own programs.

Open Source: an Open Source licence allows the licensee to use the program and change the internal coding of the program so that it functions differently. The only drawback on Open Source software is that the licensee must license the licensor to use and reproduce all alterations to the software. The other caution on Open Source is that it cannot be sold readily as this would infringe the copyright of the licensor, rather, the software may be transferred to another party in exchange for a fee.

The internet has not only affected computer program licencing but it also impacts on licenses in traditional forms of copyright such as books and sounds that may be transmitted through the internet.

Creative Commons Licenses[6]: The Creative Commons licence is a licence that allows you to use and distribute a work in much the same way as open source. If you place a copyright work on the internet under a Creative Commons Agreement anyone may take and alter that work. Furthermore, if you take works under Creative Commons you may be forced to transfer that work back to the licensor or acknowledge the works of the licensor. Creative Commons works also come under a non-commercial variation which does not allow for remixed works to be sold.

These licences are becoming ever more popular with reportedly 10,000,000 works under Creative Commons Licence on the web[7]. They are also playing a pivotal role in the Grokster litigation where they may, despite not appearing on the Grokster software, prove a non-infringing use and thus save Grokster from secondary copyright infringement proceedings.

The rights that you have been afford or which you may afford others must be considered whenever you download or upload your material to the internet. These licenses will probably determine whether you infringe another person’s work, how you obtain payment for your works or whether you are giving away your material for free.

[1] A & M Records v Napster (2001) 239 F 3d 1004, 1021 (9th Cir).
[2] Stevens v Kabushiki Kaisha Sony Computer [2004] HCATrans 273, 313 and [2005] 30
[3] Section 31 Copyright Act
[4] Section 36 Copyright Act
[5] Section 15 Copyright Act
[6] http://creativecommons.org/
[7] http://www.copyright.gov/docs/mgm/creative-commons.