The Gazette 1994

GAZETTE

JANUARY/FEBRUARY 1994

another team to compile a new

program with the information from this

decompilation. This practice is also

known as reverse engineering. There

have been major commercial disputes

as to whether such techniques meet the

original work, or whether such

practices means a substantial part of

the copyrighted work has been copied

which is a breach of the protected

Í program owner's copyright.

The Directive therefore clarifies that

Irish and domestically based foreign

software houses can decompile other

companies' computer programs but

only for the purpose of ensuring

interoperability of their own inde-

pendently created program with other

programs. Also, it is only permitted to

decompile those parts of a program

which are necessary for interopera-

bility and such information must not be

already available from other sources.

However, the most important restriction

in business terms is that any informa-

tion discovered in decompiling the

program

cannot

be used in connection

with the development, production or

marketing of a program substantially

similar in its expression to that

program which has been decompiled.

Also, the only persons allowed to

decompile and copy others works are

those who already have a licence to use

the software or are otherwise author-

ised to use it. Therefore any software

house which feels that a competing

similar product had been developed as

a result of reverse engineering will be

able to take a breach of copyright

action in light of the EU Directive.

Special Protection

Article 7 and Regulation 8.

Member

States must in their national legislation

provide appropriate remedies against

persons putting copies of works into

circulation knowing that they are pirate

copies; possessing of pirate copies for

commercial purposes; putting into

circulation devices which remove any

protection or safety barriers against

copying that may have been put into

the computer program.

(It is quite common for software

houses to place anti-copying devices

in computer programs which they

create.)

Term of Protection

Article 8.

The term of protection shall

be for the life of the author plus 50

years. For works created by businesses

such as software houses the term will

be for 50 years from the time the

program is lawfully made available to

the public. The ephemeral nature of

software suggests this term of

protection is quite liberal and reflects

the provisions of the Principal Act.

Continued Application of other

Intellectual Property and Legal

Rights

Article 9 and Regulation 9.

The

provisions shall be without prejudice to

other legal rights such as patent rights,

trade marks, passing-off or contracts. It

is not permitted to contractually avoid

the rights to decompile or study

computer programs protected by the

! Directive or prevent the making of

back-up copies.

Conclusion

The limits of EU harmonisation in the

field of copyright protection will

become apparent as there will be

nothing to prevent an Italian judge

Í considering that an infringement of

I copyright exists whilst a German judge

may only see the copying of ideas. It is

clear that the question of what

constitutes expression of the ideas

behind computer programs will be

crucial in deciding whether copying

has occurred. It is unclear how the Irish

courts will deal with the

idea/expression dichotomy and we

must await the first domestic court

action to protect software copyright to

answer this question.

Notes

Sunday Tribune

18 October 1992

2. Council Directive of 14 May 1991 on the

legal protection of computer programs -

9 1 / 2 5 0 / E EC

3. [1986] FSR 537

4. United States Copyright Act 1976,

sl02(b) 'In no case does copyright

protection for an original work of

authorship extend to any idea, procedure,

process, system, method of operation,

concept, principle, or discovery,

regardless of the form in which it is

described, explained, illustrated, or

embodied in such work."

5. [1916] 2 Ch. 601 at 608 to 609.

6. 1984 FSR 64.

* Michael Vallely is a practising

Barrister with three years experience

in computer, broadcasting and

telecommunications law acquired in

London with British Telecom.

•

Doyle Court Repor ters

Principal:

Á i ne O'Far rell

Court and Conference Verbatim Reporting - Specialists in Overnight Transcription

Personal Injury Judgements - Michaelmas and Trinity Terms 1993 - Now Ready

Consultation Room Available

2, Ar r an Quay, Dubl in 7. Tel: 8722833 or 2862097 (After Hours) Fax: 8724486

'EyceCUnce in Importing since 1954