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the program into a silicon chip has been decided in favour of copyrightability at least in Canada and the United States. 1A The real questions remaining to be answered in what we now come to see as the second generation of cases concern the scope of protection given to the copyrighted work. As we will see, we now know what is likely to be copyrighted. What we do not know is what protection this will give, i.e. what is the extent of this protection and what constitutes infringement of copyright? When we have answered this question, we will know whether or not extending protection to all forms of computer programs and codes - wherever and however stored - has created a monstrous situation with profound anti-competitive effects on the industry as a whole or is simply welcome protection to those who have had the energy and determination to make a new creation. In the words of Disraeli "copyright is the most natural of all titles - because it is a tenure by creation ''2 However this tenure should not stifle legitimate competition or halt technological progress.
European Communities is competent to extend the protection under the Directive to persons or residents from non-member states. By Order of 26th October 1987 (Official Journal of the European Communities, hr. L 313/22, 4.11.87) the Council has extended protection to private persons from British Dominions and the United States of America. The Commission may extend the protection to legal persons from the states mentioned in the Council Order. Thereto it should inform the Member States. The Directive harmonises national legislation of the Member States on the main issues, but it does not require uniform laws. In some respects, the Directive allows the Member States to decide in favour of different arrangements. The important differences among Member States can be found in registration (the United Kingdom and Belgium choose not to require registration of topographies), the requirement of a distinguishing mark (at this moment only Italy and Spain choose for an obligatory mark, which exists of respectively a "T-in-a-circle", the year of first distribution and the owner's name for Italy and a capital " T " for Spain) and the availability of criminal sanctions (German and Dutch law have criminal provisions, while Belgium did not decide yet). As mentioned before, the U.S. Chip Act's regime of "interim protection" ended on 7th November 1987. At that time, however, the United States did not grant a structural reciprocal protection (based upon a "presidential proclamation" or a treaty ex S 902 of the U.S. Act) to another state. Although several states (Japan - since 1st January 1986 - Sweden - since 1st April 1987 - the Federal
COPYRIGHTABILITY In Intellectual Property there are generally recognised to be two distinct issues. The theory under which protection or property is created which in copyright law we call copyrightability - and the standards by which we judge whether a violation or infringement has occurred which we call scope of protection. I shall deal with both in the United States and Canada and under the proposed new Canadian legislation.
Republic of Germany, France, Denmark, the Netherlands and the United Kingdom) actually had legislation similar to the U.S. Semiconductor Chip Protection Act of 1984. Thereto S 914 of the U.S. Chip Act was amended by Public Law 100-159, which was signed by the President on 9th November 1987. The amendment makes it possible to issue "interim orders" to foreign nations until 1st July 1991. As a result, the Commissioner of Patents and Trademarks immediately extended all outstanding "orders" until 31st May 1988 and a hearing was held in March 1988 to consider future policy regarding the issue of "interim orders" and "presidential proclamations".
(a) United States In the United States, the Copyright Revision Act of 1976, RL. 94-553, 17 U.S.C., was amended in 1980,3 specifically to add a definition of "computer program in section 101 as follows: "a "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." The 1976 Act had already contained a definition of audio visual work, which was applicable to some computer works in the United States as follows:
Alfred Meijboom Researcher at the Vrije Universiteit Amsterdam, Netherlands
"audio visual works" are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines of devices such as projectors, viewers or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied."
the
COPYRIGHT IN COMPUTER SOFTWARE PRESENT UNITED STATES/CANADIAN LAW AND IMPACT OF BILL C60
Section 101 also defines "copy" broadly as follows: "Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."
Introduction At one level the copyrightability of software is both settled and simple. Every major country with a developed copyright law has recognised the copyrightability of computer programs in at least their source code form. In British law countries, such source code has been protected on the basis that it is a "literary work". Particular statutes recognising copyright in computer programs have been passed in the United States in 1980, in Hungary in 1983, in Australia and India in 1984, in France, Germany, Japan, Portugal, the Republic of China, and the United Kingdom in 1985; in Korea in 1986; and in Singapore in 1987. Canada should join this group this year. 1 Even the more difficult issues raised by the embodiment of
And literary works are defined as: "works other than audio visual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books.., tapes, disks or cards in which they are embodied."
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• Law Before Intel
microprocessor) and converted into machine language (or object code) in hexadecimal form. The conversion was done by means of another computer program (an assember). The program was then encoded onto a silicon chip. It is interesting to note when we turn to the issue of infringement, that the court found that out of 12,288 bytes on the Applechip, 12,277 were identical in content and location to those on the chips of one defendant, and 12,261 were identical on the chips manufactured by a second defendant. Eight bytes were different simply because the name of the program had been changed. The court rejected the argument, similarly rejected in the Intel case, that the program was a machine part or was specifications for machine part. The court considered the program an instruction manual addressed to the CPU and was impressed by the fact that just as it had been "read-in" the ROM, it could be "read-out" in certain circumstances. The defendants had conceded that the written assembly language code version fell within the definition of literary work in Section 2 of the Act and was "an original literary work" within Section 2 and 4 of the Act. However, they argued that they had not copied the written form of the programs but only their physical embodiments in the chips. The court held that the computer program continued to be covered by copyright even when it was converted into its electrical code version. In so doing, the court:
Against this statutory background, the U.S. courts have moved by a generally steady evolution, commencing in 1982 with the early video game cases,4 to the conclusion that copyright protection is available for computer programs, in source code or in object code, whether such programs are applicable programs or operating programs or whether such programs are stored in Read-Only-Memory (ROM) chips 5 or magnetic tapes. On September 22nd, 1986, in the case of NEC Corp. v. Intel Corp.6 this logical progression reached its furthest state to date when the U.S. District Court for the Northern District of California ruled that microcode, i.e. a program or set of instructions used to control a microprocessor, was copyrightable. In so doing, the court expressly found that the Intel 8086•88 microcode was "a set of statements or instructions used directly or indirectly in a computer to bring about a certain result" under the definition of computer program in 17 USC 101 and also that micro programs are copyrightable literary works expressed in words, numbers or other numerical symbols or indicia under the definition of "literary works". In this case, NEC had brought an action against Intel to declare the microcode embodied in the 8086 chip copyrightable. The court considered that the function performed by the micro programs did not render the program uncopyrightable. The fact that the micro programs are stored in ROM in the control section of the computer did not, in the court's view, render the micro program part of the control of the computer. The micro program directs the control section to interpret or execute instructions. The microcode program was stored in ROM and loaded just like an application program. It clearly was not a machine part which would have rendered it uncopyrightable in the United States (and also in Canada as we will see). Interestingly this case proceeded on the question of copyrightability only. No finding was made as to whether NEC's microcode infringed Intel's microcode or whether it could rely on the so-called "clean room" defence. At least one commentator had suggested that computer chips which control keyboards, disk drives, and other peripheral devices could as well be considered "microcode" and therefore protected under the Intel ruling. 7 Apparently the same judge who decided the Intel case is now facing a similar issue concerning what is alleged to be microcode controlling National Semiconductor's universal asynchronous receiver/transmitter (UART) devices.
1. Rejected the argument that the chip was not a translation of the source code; 2. Rejected the argument that the machine code used to instruct the machine was part of the machine itself and therefore not copyrightable; 3. Rejected an interpretation of the Copyright Act that the Act was not intended to cover computer chips because the work was stored in a non-human readable form. The court found that there was no difference between a phonograph record and a chip, neither are in human readable form. The court was unimpressed by the argument that specific wording had been made to protect records as "mechanical contrivances" and focused instead on the words "in any material form" in Section 3 which were introduced in the British Copyright Act 1911. 4. The court rejected public policy arguments that the Copyright Act should not cover computer programs embodied in a chip in a computer, either, because (a) it would grant an unjustifiable monopoly, (b) it would overlap with patent protection, or
(b) Copyrightability in Canada Under Present Law The present statutory situation in Canada should be known to all. Canada has not amended its Copyright Act to any significant extent since it was enacted in 1924. It is hardly surprising therefore that computers are not covered in the statute. 7A After a series of interlocutory decisions in which it appeared that computer programs at least in source code would be protected under the definition of "literary work" in the Act,8 the Federal Court of Canada in April of 1986 in the now relatively well-known decision of Apple Computer, Inc. et al v. MacKintosh Computers Ltd., et al 9 has held such computer programs clearly copyrightable. The Apple case involved the plaintiff's operating programs Autostart Rom and Applesoft which had been written in assembly language (6502 assembly language for a 6502
(c) Parliament was presently discussing the extent to computer programs. (c) Copyrightability in Canada Under the Proposed Legislation Bill C-60 The proposed legislation makes two changes of great importance: 1. It amends the definition of literary work to include "computer program" and 2. More importantly it defines computer program as: "computer program means a set of instructions or statements expressed, fixed, embodied or stored in any manner and that can be used directly or indirectly in a computer in order to bring about a specific result."
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for the program for use by smaller dental firms and wrote a new program in BASIC with similar screen displays. The Court held that copyright protection of a computer program goes beyond the lines of code contained in the program to cover some aspects of the "structure" of the program. The court found that the defendant's program was similar in three significant respects. 12A
If the reader will compare this to the U.S. definition of "computer program" given at the beginning of this paper we can see that the new definition of "computer program" very closely follows the definition of "computer program" in the United States Act, except that it brings within its definition some parts of the U.S. definition of "literary works" which is not contained in the Canadian definition of "literary work". Thus we can expect, at least with respect to copyrightability, and specifically with respect to the copyrightability of microcodes, that the Canadian courts, under the new legislation - if it is enacted - will follow the U.S. lead with respect to computer software copyrightability. The new definition appears broad enough to cover screen displays which are "expressed" and not necessarily "fixed".
1. The file structures of each program were virtually identical; 2. The screen outputs of each program were virtually identical; 3. Five major subroutines within both programs, namely order entry, invoicing, accounts receivable, end of day procedure and end of month procedure performed almost identically in both programs.
INFRINGEMENT - SCOPE OF PROTECTION
However, much of the structure was either already part of the public domain or a trivial variation on it. For instance, in the "file structure" or selection of data fields, the defendant copied the following for an invoicing subroutine:
(a) The United States Perhaps the most interesting contemporary question is one which had, until recently, got lost in the court's preoccupation with copyrightability. This concerns the scope of protection for copyright in computer works or the standards by which infringement is judged. We can expect the courts to focus interestingly on this now that copyrightability issues are mostly resolved. A controversal present concern is the scope of protection granted to a program's structure or its "look and feel". The test of copyright infringement applied to normal literary works in the United States is the same as in Canada "substantial similarity". Usually however this test can be applied by asking whether "the work is recognised by an ordinary observer as having been taken from the copyright source." For works which are either primarily factual, such as strategies for winning at Scrabble or functional, such as insurance or book-keeping forms or game rules, a narrower test is usually applied that generally prohibits only verbatim copying or close paraphrasing, lo Thus in the microcode situation, the same or very similar micro instructions and sequences may be inevitable when one is seeking to express the same idea. Once the idea being expressed has been identified, it may be that - at least for microcodes - there are a limited number of ways to express that idea. Higher level or "more abstract" computer programs may provide a greater range of possible expressions and, therefore, should have a greater scope of protection. Just as there are only a finite number of plots to a book, there are only a finite number of equivalent ways of expressing certain basic computer program "ideas". Protection of too wide a range of equivalents runs the risk of allowing monopolisation of all expression of the underlying function in a program. 11 Because microcode is complex, courts are less likely to understand the explanation for the similarities between two micro programs than they are when two similar guide books for playing Scrabble are at issue. This is also the case with other types of expressions which will be dictated by functional considerations or which may appear similar on the surface although their underlying configurations are very different. Two recent U.S. cases illustrate the problem. In Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inco 12 the Plaintiff was a firm that developed Custom Software in EDL program language for the operation of a dental lab. The defendant decided that there was a market
1. description of item sold 2. number of items sold (N) 3. unit price (P) 4. extension (E = N'P) 5. total amount to be billed (sum of E's) In addition, the defendant imitated the plaintiff's practice of setting a "flag" in the records after invoicing a customer, to prevent reinvoicing the customer for the same bill. As one commentator has noted, the Court of Appeal might just as well have accused the defendant of plagiarism because he put the customer's name and address on the invoice and the date that the invoice was prepared. 12B U.S. copyright law specifically provides in Section 102(b) as follows: "in no case does copyright protection for an original work of 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." This provision appears to be a codification of the common law principles which is enshrined both in U.S. law and British and Canadian law that copyright protects only the form of expression of an idea and not the idea itself. However, in considering this proposition the court had to admit that it was frequently difficult to distinguish the idea from the expression of the idea and quoted a distinguished American jurist for the proposition that that distinction will "inevitably be ad hoc". Nevertheless, the court reviewing the traditional United States decisions on the point, formulated a test as follows: "the purpose or function of a utilitarian work would be the work's idea, and everything that is not necessary to that purpose or function would be part of the expression of the idea."12c The purpose of the plaintiff's program was to manage the business of a dental laboratory. Everything not necessary to that purpose or function was part of the expression of the idea. The structure of the plaintiff's program was not essential to the purpose of managing a dental laboratory, because that purpose could be accomplished using different structures and designs. Therefore, the court concluded that what was taken
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THE COMPUTER LAW AND SECURITY R E P O R I
from the plaintiff's copyrighted work was not the idea of the work but part of the form of the expression of the idea. This test has potentially broad implications since it hinges on what a court decides is the purpose of the program. If the purpose is conceived broadly, as a Whelan, then most specific steps will probably not be considered necessary to accomplish this purpose, and therefore copyrightable expression. If the purpose is viewed narrowly, i.e. not just a program to manage a dental laboratory but such a program which must have an order entry, an invoicing, an accounts receivable, an end of day and end of month procedure, then more of the work may be considered uncopyrightable "idea" and not copyrightable "expression".
Microstuf's Mirror program. I have not seen the actual decision, but I am told that the screens have identical communications parameters and control settings and that Mirror duplicates all 87 commands used in Crosstalk and the bilateral alphanumerics used to abbreviate them on the screen for user keyboard entry. Can bilateral abbreviations such as BReak, DEbug, Directory, EDit, NUmber, PArity, QUit be monopolised? Should the defendant adopt trilateral commands? At least one commentator has expressed the view that no one owns the public's habits and expectations and that the public has an interest in not having "to stuff more things into its limited mental memory bank". 13C
(b) Scope of Protection in Canada Under the Present Law Under English law the scope of protection for infringement of copyright also varies depending on the originality, or if you will functionality or factual nature, of the work which has allegedly been copied. tn the Canadian Apple case, Madame Justice Reed recognises this in her discussion of the idea-expression problem when she concludes that simple statements as "the
Broderbund Recently, some U.S. plaintiffs have focused on the similarity in screen output, rather than the underlying code. This is possible in the United States because this is a special type of work known as an "audio visual work". Reliance on this was developed during the video game fights of the late 1970's and early 1980's because many different code structures could be used to produce a similar screen output. In Broderbund Software, Inc. v. Unison World Inc., 13 (See also Apple Computer Inc. v Microsoft et. al. - Report on page 31 of this issue). The Federal trial court of the Northern District of California, concluded that the overall structure, sequencing and arrangements of screens in a menu-driven program that enabled users to create customised greeting cards was the same. The defendant had originally negotiated to produce an IBM version of the original Apple program. When these negotiations broke down, the defendant went ahead anyway. The defendant's screens looked like the originals in arbitrary, non-functional aspects, such as the relative size of the characters on display, the layout, the sequencing of screens and the choice of wording for phrases. The defendant had engaged in close copying, for instance of the "staggered" layout of 3-2-3-2-3 totalling 13 graphics and the "filed" layout of 5X7 in both programs, the second screen in the "custom layout" function, in which the word "place" is highlighted and the word "remove" is inversely highlighted in both programs; the fact that the "filed" option disappears in both programs in the medium-size graphic mode; the use of only left and right arrow keys on both keyboards, despite the fact that the IBM keyboard has up and down arrow capability. Some, however, of the similarities focused on by the court appear trivial such as the fact that both programs require the user to create the front of the printed product before creating the inside of it. Where does this all lead? Inevitably programmers want programs to have the same "look and feel" to take advantage of the user's expertise in having learned a computer program's command set or interface. As one commentator has pointed out, we as users, have come to expect that F1 will cause a "help" menu to appear and almost as frequently that F3 will cause the previous command line to reappear. 13A Q usually means Quit, DIR means "display the disk directory". Who owns the habits and expectations of users? 13B In a recent unreported decision Microstuf Inc. v. Softklone Distributing Corp, Microstuf's sued Softklone because of its Crosstalk program which is apparently an "emulator" of
Prime Minister of Canada met with the President of the United States on March 17th" and "the square on the Hypotenuse of a right-angle triangle is equal to the sum of the squares on the other two sides" cannot be the subject of copyright. Nevertheless, because of the exact copying that the defendant did in the Canadian Apple case, it was not necessary that Madame Justice Reed consider the exact scope of protection which would extend to expressions which, to a large extent, were dictated by functional or factual considerations. The Canadian Apple case involved a irrelatively sophisticated program which was knocked off in almost every respect and therefore it is not a precedent for difficult questions which may have to be addressed in the future about scope of protection. tt should be noted that the present Bill C-60 also provides for a new section 46.1(a) and (d) which read as follows: "the following Acts do not constitute an infringement of copyright in a work. (a) applying to a useful article feature that are dictated solely by a utilitarian function of the article (b) using any method or principal of manufacture or construction."
This section is incorporated into the new legislation in order to deal with the question of protection for industrial designs and other industrial or mass produced articles. It undoubtedly was not intended to have an effect on the protection of computer programs. Its effect is probably fairly limited in this area since it appears to be limited only to the application of "features" to "useful articles". It is unlikely that a computer program would be considered to be a feature although perhaps the etching or pattern or a semi-conductor chip might very well be. This section is much narrower than the United States counterpart is therefore likely to be given a much narrower scope.
WHAT CAN WE SAY ABOUT THE PRACTICAL ASPECTS OF PROTECTING COMPUTER SOFTWARE IN CANADA Firstly, it is absolutely essential to place a proper copyright notice on material which consists of the word "copyright" or a c; the year of first distribution to the public and the name of the copyright owner.
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2 CLSR
Copyright: Two Decisions a World Apart, Computer Law and Prac. July-August, 1986, at 177.The decision of the High Court of Australia Apple Computer, Inc. v. Computer Edge Pty., Ltd. 65 A.L.R. 33 involving computer programs for the Apple-Compatible Computer known as the "WOMBAT", the Australian High Court decided that
It may also be advisable to register copyright in computer programs in both Canada and the United States in order to gain the protection of the statutory presumptions which prima facie presume copyright to exist and to be valid in programs which are registered. Further, in the United States, registration cures any improper notice and is absolutely necessary if damages are to be collected against an infringer. On the infringement side, it is possible to adopt the "cleanroom" approach to avoid allegations of copying. This is likely to be an expensive and time consuming procedure and one which should only be adopted as a last resort where one is targeting a product to compete with a particular competitor and such product will likely be viewed as a significant competitive threat. A typical clean-room procedure could involve at least two teams: a functional specification and testing team and a microcoding team. The two teams should remain completely separate throughout the project, their only means of communication being an intermediary who controls or records all communications between the two groups. At the moment, I do not think that such clean-room procedures are necessary in Canada, and even in the United States, one court has rejected a "clean-room" defence on the ground that the claimed "original" code written by the defendant was a "duplication of expression, not ideas". 14 In the words of one commentator15 virtually any "clean-room" procedure designed to prove that a company tried to avoid copying is at least bound to suggest that the company was trying, instead, to avoid the appearance of copying."
"electrical impulses in a silicon chip, which cannot be perceived by the senses and are not intended to convey any message to any human being and which do not represent words, letters, figures or symbols"
cannot be protected as literary works. The result of this decision was arguablyintended to be overturnedby a statute passed in 1984. Since the decision decided that a program embodied in a ROM is merely a series of electrical impulses, and since the 1984 Australian amendment protectingcopyright in computer programsheld that there was copyright in any language, code or notation" it is possible that this amendment may not reversethe decision in the Computer Edge case. In Canada see Apple Computer v. Mackintosh, footnote 9. 2Quoted in Copyright in Canada - Proposals for a Revision of the Law by A.A. Keyesand C. Brunet, Consumer and Corporate Affairs Canada, April 1977 p.15. 3p.L. 96-517 paragraph 10, 94 stat. 3028, December 12, 1980. 4Stern Electronics, Inc. v. Kaufman, 669 F.2d 855; 213 USPQ 444 and Williams Electronics, Inc. v. Artic International, Inc. 215 USPQ 415 and an early computer program case "randy Corp. v. Personal Micro Computers, Inc. 524 F. Supp. 171,214 USPQ 178 (N.D. Cal. 1 1981) 5See also Apple Computer, Inc. v. Franklin Computer Corp. 714 F.2d 1240, 1251 (3d cir. 1983) cert. dismissed 464 U.S. 1033 (1984). 61 U.S.P.Q.2d 1492. 7See "Microcode Copyright Infringement" by D.K. Derwin and D.R. Siegel in The Computer Lawyer, April 1987 p.7. 7ACanada is on the verge of major revisionsto its law, see footnote 1. 8See IBM v. Ordinateurs Spirales Inc. (1984 80 C.P.R. (2d) 187, Societe D'information R.D.G.v. Dynabec et al, Quebec Superior Court, August 14, 1984affirmed by the Quebec Court of Appeal April 4, 1985, Space File Limited v. Smart Computing C.P.R. (2d) T281. 9Apple Computer, Inc. v. Mackintosh (1986) 10 C.P.R. (3d) 1, 8 C.I.P,R. 153 (F.C.T.D.),now affirmed by the Federal Court of Appeal in November, 1987, 1°See Brown, Jack E. "Recent International Trends in the Legal Protection of Computer Software" Journal of Law and Technology, Vol. 2, No. 1, Winter 1987 p.167. 11Goldstein, Infringementof Copyright in Computer Programmes, 47 U. Pitt. L. REP. 1119, 1125 (1986). 12Whelan Associates, Inc. v. Jsslow Dental Laboratory, Inc. 230 U.S.P.Q, 431; 797 F.2d 1222 (3d cir. 1986) cert. denied, 107 S.C. 877 (1987). 12A230 U.S.P.Q. at p. 484,
CONCLUSION While it is too early to say, the present proposed amendments to the Canadian Copyright Act appear to be sufficient to protect computer software manufacturers for the future. Space has not allowed us to address what is not in the new Bill. However, a provision for the making of backup copies is contained in the proposals, as is provided in the United States. Until we know more about the scope of protection which will be given to computer programs, it will not be possible to say for certain what difficulties the new legislation may engender. However, in general, we can expect the legislation will be interpreted in Canada at least so that creators will be rewarded for their work with (hopefully), not too much hindrance to those persons who are genuinely trying to do the same thing in a different way.
12BStern, Richard Recent U.S, Developments in Protecting "Idea Aspect of Computer Software" (1987) 5 EIPR 125. 12c230 U.S.P.Q. at p. ,~90.
Brian W. Gray, of the Intellectual Property Group in Toronto of Blake, Cassels and Graydon, Barristers and Solicitors, Patent and Trade Mark Agents Toronto, Canada; London, England.
13Broderbund Software, Inc. v. Unison World, Inc. 648 F.Supp. 1127 (N.D. Cal. 1986), 231 U.S.P.Q,700. ~3ASee the excellent commentary by Stern, op. cit. 13BMicrostuf Inc. v. Softklone Distributing Cop, N.D,GaC86-128A. mCStern, op. cit. 14SAS Institute v. S & H Computer Systems 605 F.Supp. 826. ~SBrown, Jack E. "Recent International Trends in the Legal Protection of Computer Software" op. cit. p.180.
Footnotes 1See Bender, David Computer Law Vol. I, Chapter 3B. In Canada, the House of Commons has passed Bill C-60 on February 3, 1988. 1Apossibly not in Australia, see Hughes, Computer Software
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