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 copyright requirement of producing an 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 j Irish and domestically based foreign j software houses can decompile other companies' computer programs but j 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

! Directive or prevent the making of back-up copies.

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.) 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 Term of Protection

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 1. 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 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. • 4. United States Copyright Act 1976, sl02(b) 'In no case does copyright protection for an original work of

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