Vol 7 No 1 - Roger Williams University School of Law

engineer the industry standard software in an attempt to makesoftware that can be interoperable (conversant) with the industrystandard. To be able to successfully reverse engineer software, inmost instances, one must copy (and in some cases “borrow” partsof) the software, which is technically an infringement of thecopyright owner’s exclusive rights over reproduction.260In the United States, the courts have employed the fair usedoctrine to mediate this issue,261 while more recently, Congresshas legislated on the notion of interoperability in relation tocircumvention devices in the DMCA. Fair use defines theappropriate balance between a monopoly right given as anincentive for innovation and the public interest in the free flow ofinformation for a variety of cultural reasons.262In Australia the Copyright Law Review Committee (CLRC)263recommended adopting a more broad-based fair use right similarto the U.S. model in place of the existing narrower and morespecific fair dealing exceptions.264 However, the High Court ofAustralia, in the case of Data Access Corp. v. Powerflex ServicesPty. Ltd.,265 refused, in the absence of legislative direction, toendorse the legitimacy of reversing engineering in an instance ofliteral copying.266 The government has since enacted a (partial)legislative solution through amendment to the Copyright Act,1968 in 1999.267 The reproduction or adaptation of a computerprogram for the purpose of obtaining information necessary to theindependent creation of a new program or a device to connect toand interoperate with a program or any other program is, in260. See Anne Fitzgerald & Cristina Cifuentes, Interoperability and ComputerSoftware Protection in Australia, 4 Computer Telecomm. L. Rev. 271, 271 (1998).261. See generally Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992)(holding that the use of copyrighted computer work to gain understanding ofunprotected functional elements was fair use of the copyrighted work).262. See Fitzgerald, supra note 109, at 153.263. Copyright Law Review Committee, supra note 60, at Part 1.264. See, e.g., Copyright Act, 1968, §§ 40- 42 (Austl.) (discussing fair dealing forpurposes of research or study, criticism or review, and reporting news).265. [1999] H.C.A. 49 (Austl.).266. Id.267. See Copyright Amendment (Computer Programs) Act, 1999, (Austl.); AnneFitzgerald & Cristina Cifuentes, Pegging Out the Boundaries of Computer SoftwareCopyright: The Computer Programs Act and the Digital Agenda Bill, in Going Digital2000: Legal Issues for E-Commerce Software and the Internet 37 (Anne Fitzgerald etal. eds., 2d ed. (2000)).