Copyright and Software Protection – Our Principal is experienced in running and winning software copyright infringement cases.

As a former programmer with over 2 decades of programming experience, she is well placed to win copyright infringement cases.

Software, or computer programs are protected as a literary work under the Copyright Act. Not only are they protected because they are a literary work, but specific provisions apply to protect software as a work.

If you take certain steps before your software is stolen, you can drastically reduce the cost of enforcing your rights.

Software Theft / Copying of Software

Before the Software is Copied or Taken

If you take a few simple steps prior to your software being taken or copied you can:

  • drastically reduce the cost of a software copyright infringement matter
  • easily prove your case to the other party, to entice it to settle the matter quickly
  • show your competitors that you intend to protect the copyright rights in software
  • be prepared for the breach or the copying of your software so you can react swiftly
  • know what software you can protect and what you can’t protect
  • provide you with insurance contacts to protect you with pursuit and defence insurance
  • fix any copyright asset ownership issues you may have. 90% of our software audits reveal the client does not own what they think they own

As the Software is taken/copied

If you act quickly when your software is taken or your computer programs are copied we can:

  • secure evidence in a manner which cannot be avoided by the other party
  • secure evidence immediately and independently so it survives any challenge in Court
  • stop any further development/theft
  • identify the other party
  • put innocent receivers of any material on notice they cannot use it
  • settle a case before the other party has a chance to use the material and cause damage to you and your business

After your computer programs are copied

After the computer programs are copied or taken we can:

  • assist you with PR recovery
  • advise you on what procedures and steps to put in place to stop it occurring again
  • advise you on how to secure your computer programs
  • assist you with any mandatory data breach notifications that may be necessary
  • educate your staff on what to look out for in respect of insider threats
  • educate your staff on how to report issues of computer program theft

WE WIN SOFTWARE COPYING CASES BECAUSE WE ARE FORMER CODERS

Our founding Partner is a former software engineer and has run and won numerous software copyright infringement cases. She has acted for numerous software companies to help them protect their software – which is effectively stock in trade for a software company.

Nicole worked as a computer programmer around the world before going into IP law. She has worked in front end and back end languages, including C/C++, SQL, Turning, ASP, CSP, Java, JavaScript, HTML, PHP and Visual Basic. She understands how software houses work including the logging created in terms of checking out source code.

She also has a background in encryption and information security having worked at Eracom and on government military projects.

Nicole prides herself on settling the cases quickly and economically which is achievable if the client takes action as soon as possible.

Nicole is a Director of the Australian Information Security Association (AISA) and the only lawyer on the Queensland law society cybersecurity working group. Nicole has a wide network of forensic experts who have a proven track record of giving qualified and expert advice in expert reports to be filed in Court and also as witnesses in the witness box. She knows what makes a convincing witness and what does not.

She also understands Australian copyright laws that protect software and computer programs. She uses that knowledge and her in-depth knowledge of software and computer programs to put her client’s case in the best possible manner to the Court whilst ensuring the concepts presented to the Court are simple enough to be understood and digested.

Read Nicole’s biggest software computer program copying case:

Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337

Leica Geosystems Pty Ltd v Koudstaal (No 2) [2013] FCA 722

Leica Geosystems Pty Ltd v Koudstaal (No 3) [2014] FCA 1129

No other IP lawyers in Australia have the same expert knowledge and background to run software copyright cases.

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Doyles Guide Recommended Intellectual Property

Queensland law society

IPSANZ MEMBER

Copyright protects the code not the function

Copyright protects the expression of the idea, not the idea itself. This means that:

  • Copyright will not protect the function of the source code – look at obtaining a Patent for that software protection
  • Another trader can take an idea from your computer program and create a competing product without infringing copyright
  • software development projects will often involve competitor analysis. Expect your competitors to follow your lead

Substantial Part

Copyright in a work will not be infringed unless a substantial part of the work is taken/copied/used:

  • this is a test of quality not quantity
  • there is no blanket 10% change rule that somehow magically works to protect you from all forms of infringement
  • you can infringe a work by taking a very small portion – some cases have found infringement where only 5% of a work is taken
  • infringement can occur through using source code to develop other source code – even in a different coding language  – this is known as the stepping stone principle

Copyright Information

Software and Copyright Law:

  • copyright does not apply to all things – for example it does not apply to works that are automatically created – but may protect the source code that generates that material
  • copyright does not protect against independent creation
  • Australia does not have a general use copyright exception – we have specific fair use provisions
  • we have specific copyright provisions that relate to computer programs
  • you cannot register copyright in Australia – no matter how much the con-artists swear you can
  • copyright infringement in computer programs can be a criminal act

When is Copyright infringed

Copyright rights are infringed when a person does a thing comprised in an act of copyright which includes (amongst other things):

  • reproducing the work in material form
  • publish the work
  • perform the work in public
  • communicate the work to the public
  • make an adaptation of the work (in some cases)

What if you do not have a Copyright Infringement Case?

The vast majority of cases we run regarding the copying of computer programs or the theft of source code involve other claims that are not related to copyright. These include vicarious liability claims against employers, misuse of confidential information cases, breaches of the Corporations Act, breaches of fiduciary duties and breaches of employment contracts.

Your case isn’t over, just because you don’t have a copyright infringement case.

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