It is unclear whether Article 6 permits decompilation for the purpose of creating a competing program which can be used as a substitute for the original program rather than merely attaching to it. Some commentators take the view that the Directive permits the creation of a competing program, provided it is not substantially similar in expression.
The CLRC's recommendation on decompilation for interoperability closely resembles Article 6 of the Directive, with one notable difference. The CLRC's proposal does not contain any equivalent to paragraph 2 c of Article 6 which expressly prohibits the use of information obtained through decompilation in the development, production or marketing of a program of substantially similar expression or for any other act which infringes copyright.
The same debate is currently being conducted in Australia between the opponents and supporters of the CLRC's recommendations on reverse engineering. Amendment of the Copyright Act as proposed by the CLRC is being opposed by a number of large computer software and hardware companies. If the limited decompilation right proposed by the CLRC were to be implemented in legislation it would, arguably, put Australian programmers and software companies at a disadvantage when compared with their counterparts in the United States, where a broader right to decompile has been recognised by the courts.
Those in favour of permitting decompilation point out that for most copyright literary works, the unprotected ideas, information, methods and techniques which they contain are available to anyone merely by reading the work.
There is no need to reproduce the work to obtain access to those elements which are not protected by copyright. For computer programs, though, the unprotectable elements can only be revealed by decompilation which necessarily involves copying. However, following the amendments to the Copyright Act in to provide protection for computer programs, it is an infringement of copyright to decompile an object code version of a program into a source code, human-readable form in order to access the underlying ideas or functional elements.
Unless decompilation is permitted, the effect of copyright law is thus to confer trade secret protection on functional processes and systems embodied in computer programs.
In the United States, a series of important decisions since have seen the courts narrow the scope of copyright protection for computer software, retreating from the high-water mark of protection established in Whelan v Jaslow. The potential for copyright law to extend de facto monopoly protection to the unprotectable elements of computer programs has been recognised in two recent appeal decisions.
The leading US cases on the rights of a user to reverse engineer or decompile a computer program are the decisions of the Ninth and Federal circuit courts of appeal in Sega Enterprises Ltd v Accolade, Inc. At issue in Sega was whether a person who is neither the copyright owner nor a licensee is permitted to decompile a copyrighted computer program in order to understand the ideas and functional elements underlying it.
Sega, a leader in the home video entertainment market, manufactured a video entertainment console — the Genesis — and video game cartridges. It licensed the rights to create games compatible with the Genesis console to independent developers of video game programs under agreements which required Sega to be the exclusive manufacturer of the games developed by the licensee.
The information needed to achieve interoperability was withheld from the licensees and supplied by Sega during manufacture.
Sega then resold the completed games to the licensee for commercial distribution. Accolade was an independent developer, manufacturer and marketer of computer entertainment software and wanted to produce games compatible with the Genesis console. Unwilling to hand over the manufacturing process to Sega, Accolade decompiled object code in Sega's video game programs into source code to discover the interface specifications for the Genesis console.
In the process, Accolade's engineers made numerous copies of Sega's microcode. Information obtained about the requirements for a Genesis-compatible game was included in a development manual written by Accolade employees. The manual contained functional descriptions of the interface specifications but did not include any of Sega's code. Based on the information in the development manual, Accolade then produced its own programs for use with the Genesis console.
In response to Sega's claim that Accolade had infringed its exclusive rights by decompiling its copyrighted computer programs, Accolade argued that decompilation in order to understand ideas and functional concepts was a fair use permitted by s.
Looking at the first statutory factor, [] the court held that Accolade's purpose in using Sega's code was "legitimate and essentially non-exploitative" and that the commercial aspect of its use was indirect and of minimal significance. Although Accolade's ultimate purpose of producing Genesis-compatible games was commercial, its intermediate purpose in using the copyrighted material was to discover the functional requirements for compatibility.
Further, by identifying the functional elements required for compatibility with the Genesis console, Accolade produced a benefit for the public by increasing the number of video games available for use with Sega's machine. The fact that the work in question was a computer program was relevant to the second statutory factor - "the nature of the copyrighted work" - as different copyright works attract varying levels of protection. The Ninth Circuit characterised computer programs as essentially utilitarian, containing "many logical, structural and display elements" which are required by the "function to be performed, by considerations of efficiency, or by external factors such as compatibility requirements and industry demands.
The only means by which Accolade could gain an understanding of the functional requirements for compatibility was by decompilation. As Sega's video game programs contained unprotected aspects that could not be examined without copying, they were afforded a lower degree of protection than traditional literary works. The only statutory factor which the court found to weigh even slightly in Sega's favour was "the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
The court also found in favour of Accolade on the question of the effect of the use upon the potential market for or value of the copyrighted work. Accolade's decompilation had an indirect effect on the market for Genesis-compatible games in that it enabled Accolade to gain entry into the market without a licence from Sega.
However, the nature of the video games market is such that users typically purchase multiple games. There was no basis for finding that Accolade's use had significantly affected the market for Sega's games, since consumers might well choose to purchase cartridges produced by both Sega and Accolade.
The Ninth Circuit concluded that while Accolade's intermediate copying of the object code was a prima facie infringement of Sega's exclusive rights, it came within the fair use exception.
The unprotected aspects of Sega's programs could only be accessed by decompilation and Accolade had a legitimate interest in gaining access to them to ascertain how to make Genesis-compatible game cartridges. A key issue for the Ninth Circuit was the policy underlying the Copyright Act of encouraging the creation of original works by protecting expression but leaving ideas and functional elements in the public domain.
Unlike other copyright works, computer programs are distributed to the public in object code form and there is no way of discerning those unprotected ideas and functional concepts apart from decompilation. The court was adamant that the owner of copyright in a computer program should not be able to obtain a de facto monopoly over the ideas and functional elements, thereby precluding public access and defeating the fundamental purpose of the Copyright Act.
The court held that. The Federal Circuit commented that. The decision in Sega is widely accepted by most US commentators as correctly resolving the question of the reverse engineering of computer programs. However, the fair use analyses in Sega and Atari would apparently permit decompilation in a broader range of cases than would be approved under the EU Directive. Both the Directive and the fair use exception limit the right to decompile to situations where the information in the object code cannot be discerned in any other way.
Further, the information obtained from decompilation cannot be used to substantially reproduce the expression of the original program but can only be used to create an independently authored program.
The main point of difference is the Directive's focus on interoperability. Article 6 limits decompilation to the parts of the original program which are required for interoperability and permits use of the information obtained only for the purpose of achieving interoperability of an independently created program.
For this reason, most US commentators regard the Directive as establishing a distinctly narrower scope for permissible decompilation than the US fair use cases. Anthony Clapes describes the decompilation right accorded by Article 6 as "heavily circumscribed, [and] far more limited than the "fair use" privilege granted in Sega and [ Atari ].
The Committee cited Sega as authority for the broad principle that:. Copyright Law Review Committee. Draft report on computer software protection. Request this item to view in the Library's reading rooms using your library card. To learn more about how to request items watch this short online video. You can view this on the NLA website.
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Learn More Accept. Intellectual Property. Your LinkedIn Connections with the authors. To print this article, all you need is to be registered or login on Mondaq. Non-literal copying of computer programs A computer program is a complex combination of protectable and unprotectable components, hence protecting only the literary elements is not sufficient. Khushboo Tomar. India Intellectual Property Copyright.
Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals. A Trade mark may be defined as a lawfully protected abstract, word, symbol, color, mark, slogan or a mixture of those related to an organization or a selected product that differentiates it from the others accessible within the market. With coming up of the new Trade Mark Rules , a new procedure has been created that allows the Registrar to proclaim a particular trademark as "well known".
Many entrepreneurs do not comprehend the importance of a TM search. Who Owns Memes? Photon legal. One such trend popularly followed by the masses is of sharing, designing, communicating through "memes". Fair use supports "socially laudable purposes," typically, if not exclusively, involving the use of the copyrighted work by a second author.
Sign Up for our free News Alerts - All the latest articles on your chosen topics condensed into a free bi-weekly email. Register For News Alerts. Article Tags. Analysis Of R. Anand V. Khurana and Khurana. Computer software protection. Barton, A. T Request this item to view in the Library's reading rooms using your library card. To learn more about how to request items watch this short online video. You can view this on the NLA website.
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