A COMPUTER program called Word 5 was marketed in the late 1980s. Most copies of it state “”Copyright 1989” when called up by a computer. This means that Microsoft, the creator of Word 5 will get copyright protection for the program until 2039, that is for 50 years after the program’s creation. Yet it is now impossible to buy a copy of Word 5 in a computer shop.
This is generally true of computer programs. Within 18 months they are upgraded and within three or four years at the outside they are simply unobtainable. Why should the law prevent the copying of something which is otherwise unavailable and therefore has no commercial value?
Last week the Prices Surveillance Authority commendably recommended that restrictions in the Copyright Act on the importing of computer software should be abolished. It said computer software companies and their licensed agents in Australian were charging Australian consumers too much. Under the Copyright Act licensed importers can stop people from importing software in commercial quantities even if they have paid full copyright fees in the overseas country, usually the US. The PSA rightly said if this restriction were abolished there would be greater competition and price of software in Australia would more reasonably reflect US price plus freight, not US price plus freight plus add-on for the cosy little restrictive practice protected by the Copyright Act.
However, the PSA’s recommendation is not a panacea for the software problem. As the Word 5 example shows, copyright is the wrong way to protect software: it is not so much using a sledge-hammer to crack a walnut, but rather a jack-hammer. The jack-hammer shakes about and most of the time the walnut shoots free.
The law must protect intellectual property or few would bother to produce. There must be a financial reward for invention and creation. And in return for that protection, the public must ultimately get a benefit. The owner of the intellectual property must be able to prevent unauthorised copying, but in return the intellectual property must at some stage come into the public domain. But why should computer programs get copyright protection which lasts for 50 years rather than a type of patent protection which last for 16 years. Or more pertinently, why can’t our law-makers devise an entirely new form of protection for software which is appropriate to software, rather than relying on copyright whose principles were worked out more than 80 years ago or patent law which began in the 15th century.
We need a hybrid protection. When computer programs proliferated in the 1980s, software companies sought protection under existing law. Parliamentarians were too busy chucking mud at each other to have time to sit down and deal with a new technological need. There choice was to go for copyright or patent protection. Copyright flows out of the pen. It is created as the literary, artistic or musical work is created. By literary the law means writing and software fits that category, according to the Federal Court. Copyright lasts 50 years, or if the identity of the author is known for 50 years from his or her death. Patents on the other hand have to be specially applied for at great cost and are only granted upon proof of inventiveness. They only last for 16 years.
Inventive software owners quite smartly went for the easiest and most embracing protection, in the absence of law-makers being inventive and smart themselves.
Both provide remedies of destruction of infringing copies, injunction against further copying and account for profits. There are also criminal provisions for profiteers. These are appropriate remedies for software. What is not appropriate, however, is the length of time the protection lasts.
The rule should be that if the software is no longer commercially available the copyright should lapse. It should lapse in, say, five years anyway. That software could be used in schools and by individuals. Businesses in general like to get the higher productivity out of the latest versions of software and would pay the price. In return for this extra benefit, enforcement efforts should be increased.
Given the general difficulty in enforcing copyright against one-off private copying, a levy on disks could be struck which would be paid according to copies of software sold legitimately. Similar methods have been used with commercial, government and educational photocopying with some success.
The PSA’s recommendations are welcome, but they only nibble at the edge of the problem.