Stokes, Michael --- "Editorial" [2003] JlLawInfoSci 1; (2003) 14 Journal of Law, Information and Science 5
EDITORIAL
The first article in this issue, by Dr John Abbot, examines whether the law of copyright should allow reverse engineering of software programmes to ensure interoperability or to produce compatible competing software. Abbot points out that reverse engineering plays a crucial role in the development of new or competing programmes because it is often the only way to reveal the ideas underlying computer programmes. Issues involving reverse engineering and copyright have been most considered in the United States, where the courts have tended to allow reverse engineering for the purposes of developing new or competing products under the doctrine of fair use. US law allows existing software to be copied and reverse engineered to enable compatible and competing programmes to be developed as long as a competing product is ‘transformative’. Other jurisdictions, including Australia have legislated to create narrow exceptions to allow reverse engineering but only to ensure interoperability. Other countries, including Canada, Japan and Singapore, have not dealt with the problem by legislation, but have left the issue to be resolved under existing fair dealing laws. Abbot suggests that the liberal US approach to reverse engineering may in part explain why it has the most advanced software industry in the world, adding that there are concerns that the Australian legislation on reverse engineering in the Digital Millenium Copyright Act may be too restrictive, tending to stifle innovation.
Anton Hughes’s article also deals with intellectual property protection for software. He points out that intellectual property law has had difficulty in developing appropriate incentives for software innovation, trade secrets and copyright law having been tried and found wanting. The law of patents is the current favourite of those who are seeking enhanced protection for software innovation. However, there is growing opposition to moves to extend patent protection to software, especially in Europe. Hughes compares the rationale of the patent system with the way in which software is developed, especially the collaborative, incremental nature of that development in which innovators build on what has gone before, and suggests that the patenting of software places impediments in the way of innovation in the software industry. He argues that it poses a particular threat to the open source movement, which he regards as a valuable system of global collaboration. He examines various measures which the open source movement has taken to protect itself from the threat of patent litigation, concluding that they may not be enough to protect it. Finally he examines options for reform and the barriers to it. He concludes that to protect innovators from copying without stifling innovation, the software industry needs an industry specific form of intellectual property protection similar to that given to circuits by the Circuit Layout Act.
Michael Stokes
Editor.