Access Codes and Passwords - Who really owns such

21 Jun 2017

Access Code

Imagine this, you have invested substantial time and effort into manufacturing a piece of major equipment (Product).  Sales for your Product are skyrocketing, your profits are increasing and you anticipate that your profits will continue to increase from sales and providing after-sales maintenance services.

Although there are external or third party service providers who can service and/or maintain your Product, you may refuse to release or provide the “access codes” (such as propriety keys, passwords, PINs etc) to allow them to obtain access to your product on the basis that they are not authorised.  It is your Product so you should be entitled to own and keep the access codes, right?

Unfortunately, that is not necessarily the case.  

When a manufacturer supplies equipment it is on the basis that only the manufacturer or its authorised agent are allowed to use an access code to access the equipment so as to provide maintenance services.  Competition Law implications could arise.

The owners (i.e. the purchaser from the manufacturer) of the equipment are entitled to be kept informed of any access codes for the equipment, including any changes to the access codes.  

Failing to keep the owners informed could significantly lessen competition in the market for the relevant maintenance services. Less competition can translate into these owners having to pay higher prices.

“Access codes” are not necessarily protected by copyright. 

Although the Copyright Act 1968 prohibits any circumventing of “access control technological protection measures”, these protection measures do not include passwords that restrict equipment being accessed for maintenance services.

Further, if a person (First Person) threatens, without grounds, another person (Recipient) with legal proceedings in relation to technological protection measures (e.g.  access codes), the Recipient may bring an action against the First Person (Section 202A of the Copyright Act 1968).

The action may be brought, even if the First Person is not the owner or exclusive licensee of the copyright of the subject-matter!

Dealing with technology, intellectual property and competition law issues can be a daunting and confusing process. If you are having problems or just wish to have a chat, please contact Tom Meagher from Murfett Legal.  We have a wealth of experience in these types of matters, and a range of other matters, and would be pleased to assist.
 

For further information contact Murfett Legal by emailing one of the following directors:

 
Jason De Silva (Director):     jason.desilva@murfett.com.au
Kelly Parker  (Director):       kelly.parker@murfett.com.au
Peter Broun  (Director):       peter.broun@murfett.com.au


Author:     Tom Meagher
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