Software & Apps. December PO Box 1986, Strawberry Hills NSW 2012 ABN:

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1 INFORMATION SHEET G050 v12 December 2014 Software & Apps This information sheet gives a brief overview of copyright as it applies to people who develop all kinds of software such as desktop software, mobile apps, games and web-based applications. It also contains some information relevant to people using software. We discuss these issues further in our publications Interactive Games & Copyright and Copyright & Online Technologies. Readers may also be interested in the information found in our information sheets Websites & Copyright and Websites: Social Networks, Blogs & User-generated Media. The purpose of this information sheet is to give general introductory information about copyright. If you need to know how the law applies in a particular situation, please get advice from a lawyer. Key points Software is protected by copyright as a literary work, in the same way as books or poems. What you can and can t do with software is set out in the terms and conditions of your licence. There is no general right to copy software for personal use. Developers should familiarise themselves with the licences under which they distribute their software. How is software protected by copyright? Software is protected by copyright as a type of literary work. This includes all types of software like desktop applications, mobile apps and web-based applications. The Copyright Act uses the term computer program to refer to software and defines it as: a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. Other material associated with software may also be separately protected by copyright, for example, text, databases, visual art (including charts, maps and plans), video (such as instructional videos, commercials and computer video games), music and sound recordings. For further information see our information sheet An Introduction to Copyright in Australia.

2 Australian Copyright Council Information Sheet G050v12 Software & Apps 2 What rights do copyright owners have? The owners of copyright in software are granted a number of exclusive rights to control the manner in which their work is used. This include the exclusive right to: reproduce the software in a material form (such as copying the program to hard drive); publish the software (making copies available to the public for the first time); adapt the software (such as making a version of the software that works on a different operating system); and communicate the software to the public (such as making it available for download). perform the work to the public (such as demonstrating software in a public forum) enter into a commercial arrangement in respect of the program (such as renting the software or app) For information on renting or importing computer software, see our information sheets Renting Items Protected by Copyright and Importing Copyright Items. What is not protected by copyright? Copyright does not protect the name or title of a particular piece of software, however, this may be protected by other laws. For further information see our information sheet, Names, Titles & Slogans. Copyright does not protect underlying ideas or concepts. Rather, copyright protects the particular way in which an idea or concept is expressed in a material way. So whilst a particular app or piece of software is protected, copyright does not prevent an developer from independently coming up with their own app or software that does the same thing. For further information see our information sheet, Ideas: Legal Protection. Copyright does not protect the function of a piece of software. Copyright does not give a copyright owner a monopoly on what the software does. Rather it gives the owner the right to prevent someone else from duplicating the expression of the set of instructions that constitute the software. In one case, the court stated that the fact that two pieces of software perform the same function does not, by itself, mean that there is any similarity between the two sets of instructions. Copyright does not protect information. Rather it protects the way in which information is expressed. Nonetheless, if someone uses skill and effort to select and arrange information, the resulting compilation may be protected. For further information see our information sheet, Databases, Compilations, Tables & Forms. Copyright does not protect circuit layouts. Specific legislation the Circuit Layouts Act protects circuit layouts. For general information on circuit layouts see IP Australia s website at How do you get copyright protection? Copyright protection is free and automatic in Australia. There is no system of registration and no formal procedure that needs to be undertaken for your software to be protected. Your software will be protected as soon as you save it to a file, write it down or put it into some kind of material form. Because of international treaties such as the Berne Convention, most foreign copyright owners are protected in Australia.

3 Australian Copyright Council Information Sheet G050v12 Software & Apps 3 The copyright notice On some works you see the copyright notice : the symbol with the name of the copyright owner and the year of first publication (for example, Australian Copyright Council 2014). If the computer software is updated over time, the copyright notice may reflect that (for example, Australian Copyright Council ). The copyright notice is not required for protection in Australia; a work may be protected even though the copyright notice is not on it. This also means that just because software may not have the copyright notice on it doesn t mean it is not protected. It is a good idea to put the copyright notice on your software in the program itself and on packaging as it notifies others that the software is protected by copyright and lets others know whom to contact for copyright-related enquiries. In addition to the copyright notice, you may want to include a more detailed warning against unauthorised use. Who owns copyright? In most cases there will be an agreement about the creation of a piece of software (for example, someone is commissioned to do it) setting out who owns copyright in the material. If there is an agreement in place setting out who owns copyright this will apply. As such, you should first look at the agreement to work out who owns copyright and what rights each party has. If there is no agreement about ownership, the following rules apply: The default rule is that the creator of a work is the first owner of copyright in it. In the case of software, the first owner of copyright will generally be the developer/s who wrote the code. If the software has been developed by an employee (rather than a freelancer or volunteer contributor) in the course of employment and as part of the employee s usual duties, the first owner of copyright will be the employer; and a government will be the first owner of copyright in material created, or first published, under its direction or control. Purchasing a copy of an app or software is not the same as owning copyright in the item. In most cases, when you purchase software, what you are are actually purchasing a licence to use that software. Commissioned software If you are commissioned to develop software, it is preferable to have your agreements in writing, and to state clearly who will own copyright and what uses the other party may make of the software. It may not be necessary for a commissioning party to be the owner of copyright in a program. In most cases, if a commissioning party does not own copyright, it will nevertheless have a licence to use the software for the purposes for which it was commissioned, as agreed by the parties at the outset. In other cases it may be appropriate that the client owns some parts of commissioned software and the software creator owns others (for example, where a developer uses standard program elements in software which they would use for various clients). Joint authorship It is common for software to have more than one creator. A work of joint authorship is one produced by the collaboration of two or more creators in which the contribution of each creator cannot be distinguished from the contribution of the other creator or creators. In these circumstances, each creator will usually own an indivisible share of the copyright in the work. This means that no one creator may exercise the rights without the permission of the other creator or creators.

4 Australian Copyright Council Information Sheet G050v12 Software & Apps 4 It is common for some companies managing software projects involving multiple developers should always keep a record of individuals contributions to a project. This is because recent decisions by the courts have indicated that the presence of identifiable authors strengthens the argument that copyright subsists in materials created by those multiple authors. For more information, see our information sheet Databases, Compilations, Tables & Forms Some situations where you can use software without permission There are a number of situations where permission from the copyright owner is not required, even though the use would otherwise be an infringement. Making a back-up copy The owner of a legitimate copy of a piece of software may make a back-up copy of a program, either to use in place of the original copy, or to store as a backup for use if the original or an earlier back-up is lost, destroyed or rendered unusable. The provisions in the Copyright Act also allow copying of software as part of a normal process of backing up files for security purposes. The provisions do not allow copies to be made from an infringing copy of a piece of software, or if the owner of copyright in the program has blocked the making of copies (for example, by using 'locks' or other technological devices built into the program). Also, the provisions do not apply if the licence governing the use of the original has expired or been terminated. The back-up copy may be made whether or not the copyright owner makes an express direction to the contrary at or before the time of purchase, for example on the package. Note, however, that this exception applies only to the software itself, and not to other copyright material (such as music, words, artistic works and sound recordings) that may be accessed by means of the software. Therefore, you would be entitled to make a backup copy of a disk that only contained software, but not a disk that included other copyright material, such as a computer game with music, video or images. Making interoperable products Software may be reproduced or adapted in order to get information necessary to enable an interoperable product to be made. The relevant provision also allows the person making the interoperable product to reproduce or adapt the original software in the interoperable product, but only to the extent necessary to enable interoperability either with that or any other software. Security testing and error correction A non-infringing copy of software may be reproduced or adapted by or on behalf of the owner or licensee of the copy for various security testing purposes, and to correct errors and security flaws, if such reproduction or adaptation is reasonably necessary to achieve the relevant purpose, and only where the resulting information is not readily available from another source. For further information see our information sheet Exceptions to Copyright. When is copyright infringed? Copyright will be infringed where a person, other than the copyright owner, uses a substantial part of the material in any of the ways reserved for the copyright owner without their permission. For software, some situations which require permission include making copies, installing software on multiple devices, porting software across different platforms, and making software available for download. If the software has been made commercially available, the relevant licensing agreement

5 Australian Copyright Council Information Sheet G050v12 Software & Apps 5 may set out what permissions the copyright owner has given in relation to the way that software and any accompanying material (such as text or graphics, including typeface designs) is used. The courts have adopted a qualitative as well as a quantitative approach so that a small part may still be a substantial part if it is essential, important or vital in relation to the whole work from which it is taken. In one case a court held that a look-up table, which formed part of a piece of software, was a substantial part of that software. The fact that the look-up table was not software in itself did not mean it could not form a substantial part of a program. In another case, a court held that an error text table in a piece of software was not a substantial part, apparently on the basis that the error table was not the linchpin of the program, and that the software could function without an error text table. Copyright is infringed by someone who authorises someone else to infringe copyright. In one case, a court said that the word authorise has the meaning of endorse, sanction or countenance. A person may infringe copyright by importing, selling, or otherwise commercially dealing with an infringing copy of computer software. For more information, see our information sheet Importing Copyright Items. Finally, a person also infringes copyright by simply playing an infringing copy software. (See below under Is it ok for me to play an infringing application or game? ). Technological protection measures (TPMs) These refer to various technologies that you can use to protect your software and limit the way in which others can use your material. TPMs can include features like copy protection, password access and other types of technically based restrictions. Broadly, there are two main types of TPM: those that restrict access to the material, and those that limit or prevent copying of the material. The Copyright Act supports the use of TPMs because these give practical protection to copyright owners. There are also provisions in the Copyright Act that give copyright owners the right to take legal action against people who make, supply, distribute or import devices to circumvent TPMs. In some cases, distribution of devices or services to circumvent TPMs is a criminal offence. In particular, there were sanctions against: circumventing an access-control TPM; manufacturing or supplying a device to circumvent an access-control TPM; and providing a service to circumvent an access-control TPM. Electronic Rights Management Information (ERMI) ERMI is information that has been embedded or attached to copyright-protected material and can include details about the material, the copyright owner and related data. For example, details embedded in the metadata of an MP3 file or the watermarking and other data embedded into an image or video file. A copyright owner can take action against someone that alters or removes such data with the aim of enabling, concealing or facilitating infringement of that material. For more information, see our publication Technology, Contracts & Paracopyright. Using third party material in your software A large amount of software developed today uses third party material such as images, photographs, music or video clips each of these may be protected by copyright.

6 Australian Copyright Council Information Sheet G050v12 Software & Apps 6 A developer wanting to use such material in his or her software should make sure that permission to use that material in the software has been obtained from the copyright owner of the material (be it music, video, images, and the like). A TV production company took legal action against the operators of an online mobile app store that sold an app containing audio samples of a TV show that were recorded and used in the app without permission. The app was selling well on the app store and allowed people to play back humorous audio samples recorded from episodes of a comedy program. In this particular case, the production company decided not to take action against the developer (only the app store), but had the production company wanted to, it could have initiated a copyright infringement action against the developer. Software licenses Nearly all developers release their software with some sort of licence for the end user. These can range from more restrictive licenses often found on proprietary software to the open licences that allow a flexible range of uses often found with open source software. If you are a copyright owner of software, then it us up to you to decide what type of licence you will give your users. The type of license you decide on will ultimately come down to a number of factors such as whether its creation is a commercial venture or whether you are happy for the software to be freely distributed without requiring your further permission. Digital Sales, App Stores & Agreements If you are distributing your software through different app stores, it is important to be aware that each may have its own terms and conditions that you will have to agree to before your software can be sold on its platform. Familiarising yourself with the licences of the various platforms on which you wish to distribute your software is important, as these determine what purchasers/users of your software will be able to do with it. These licences will cover a variety of aspects such as sharing of revenue and acceptable software content and function, but in a copyright sense, these agreements will often contain licences that can determine how many copies of your app can be installed at a particular time, how many devices an app can be installed on and similar restrictions. Keep an eye out for any clauses that determine what rights purchasers or app store operators are given. It would be prudent to have any agreements legally reviewed before signing them. Being familiar with terms and conditions is also important for people using software, as they indicate in what ways you are allowed to use the software as well as what your rights are in relation to factors such as making backup copies, re-downloading and installing the software on multiple devices. Frequently Asked Questions (FAQs) How do I protect software I have created? Copyright protection is free and automatic; there is no requirement to register or to go through any other formal procedure. A computer program is protected from the moment it is fixed in a material form for example, on disk. It is a good idea to put the copyright notice (see above under the heading The copyright notice ) on your software to warn others that it is protected and that you own the rights in it. In addition to copyright protection, also consider technological measures such as copy protection or encoded information to inhibit or discourage unauthorised copying.

7 Australian Copyright Council Information Sheet G050v12 Software & Apps 7 For further information see our information sheet Protecting Your Copyright. Is it a criminal offence to make unauthorised copies of software? The Copyright Act sets out certain circumstances where an infringement of copyright will be a criminal offence. It is, for example, an offence to make an infringing copy of software to sell. It is also an offence to advertise the supply of infringing software. The penalties vary according to the nature of the infringement, and whether the offender is an individual or a company. A court also has the power to jail offenders for a first time conviction for an infringement of copyright in a cinematograph film, or in relation to second or further convictions. Also, a court has the power to order that equipment used to make infringing copies (such as a computer used to copy software) be confiscated. For more information, see our information sheet Infringement: Actions, Remedies, Offences, Penalties. Is there an exception that allows copying of software for personal use? The Copyright Act does not contain any provisions which allow personal use of copyright material without permission. In any event, you are likely to have separate obligations under the terms and conditions of the licence. Can I sell second-hand copies of software? While the Copyright Act does not give copyright owners the exclusive right to control the sale or resale of copyright material. However, special considerations apply to software and where material is made available in digital form. To work out whether you can sell a second-hand copy of a piece of software, you will need to look at the licensing agreement accompanying that item. Generally, you will not be able to re-sell software if the licence states, for example, that the item may not be re-sold, or states that the item may only be used by the purchaser. In each of these cases, the person purchasing the item from you is likely to be infringing copyright if they use it and you are likely also to be liable on the basis that you have authorised that infringement. In other cases, re-sale may be allowed, but only if certain terms or conditions are followed (for example, that all material, including any disks and printed material, be given to the purchaser, and that the purchaser accept all the terms and conditions of the original licence). What should I look out for if I want to buy second hand software? As noted above, commercial dealings with second hand software may be prohibited by the licensing agreement into which the purchaser entered when the software was first bought. Some licences may allow transfer of ownership of the software from one person to another but usually on condition that the terms of the licensing agreement are also accepted by the new owner. Other licences expressly prohibit the transfer of ownership of the software. If you do purchase second-hand software make sure you are given all the relevant paperwork including the original licence and proof of purchase. Check that the sale of the software is allowed under the licence. Proof of purchase may help to ensure that you are dealing with the person who is able to transfer ownership of the software and on-license the use of that software. Is it ok for me to play an infringing app or game? Copyright may be infringed by: running an infringing copy of a piece of software (like an app or a game); or

8 Australian Copyright Council Information Sheet G050v12 Software & Apps 8 running software that was imported without the copyright owner s permission, even where importing the item did not infringe copyright (for example, because it was a legitimate copy made in another country, and imported for personal use). Therefore, it may be an infringement even if you do not make further copies of the software. If a company that developed software goes out of business, does the software go into the public domain? No. Copyright protection for software generally lasts for the life of the individual author of the software plus 70 years. If the company that published the software owns copyright in the software and goes out of business, ownership of the copyright may be transferred to whoever buys the assets of the company. I have created an app that makes calculations. Do I own copyright in my app? Your app is likely to be protected by copyright in its own right. In the absence of an agreement stating otherwise (such as a commissioning agreement that sets outs who owns copyright) you will generally own any copyright you create, unless you create it in the course of your employment in which case it is likely that your employment owns copyright. I have created an enhanced version of existing software. Do I own copyright in the improved version? Software derived from another existing piece of software is likely to be separately protected by copyright. The owner of copyright in the new version is likely to be the person who created it. However, the copyright in the improved version will be subject to the copyright in the underlying software, and you will not be able to use or exploit the enhanced version without permission from the owner of copyright in the underlying software. Further information For further information about copyright, see our website or contact us. If you meet our eligibility guidelines, a Copyright Council lawyer may be able to give you free preliminary legal advice about an issue that is not addressed in an information sheet. This service is primarily for professional creators and arts organisations but is also available to staff of educational institutions and libraries. For information about the service, see Reproducing this information sheet Our information sheets are regularly updated - please check our website to ensure you are accessing the most current version. Should you wish to use this information sheet for any purpose other than your reference, please contact us for assistance. About Us The Australian Copyright Council is an independent, non-profit organisation. Founded in 1968, we represent the peak bodies for professional artists and content creators working in Australia s creative industries and Australia s major copyright collecting societies. We are advocates for the contribution of creators to Australia s culture and economy; the importance of copyright for the common good. We work to promote understanding of copyright law and its application, lobby for appropriate law reform and foster collaboration between content creators and consumers.

9 Australian Copyright Council Information Sheet G050v12 Software & Apps 9 We provide easily accessible and affordable practical, user-friendly information, legal advice, education and forums on Australian copyright law for content creators and consumers. The Australian Copyright Council has been assisted by the Australian Government through the Australia Council, its arts funding and advisory body. Australian Copyright Council 2014

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