NSW Copyright of Complex International Software - Asking for Programmer's Permission?

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6 September 2015

In 2000 I created software as part of my doctoral project at an American university. It is copyright protected to the same extent as any published doctoral thesis (published by UMI Dissertation Services). The software however is an implementation of a theory that belongs to someone else. A more skilled programmer than me recently produced a more polished package derived from the same theory, "inspired" by my work, but of his own making.

I now have a private business venture in which I want use of this software. My venture has nothing to do with the original author of the theory, nor with his intentions for the ideas. Nor does it have anything to do with this second programmer, except that his program is far more usable than mine, so simply using it would be far quicker and easier than reworking my own original program. He has made it available with a simple licence, which states:
Redistribution and use in source and binary forms, with or without
modification, are permitted provided that the following conditions
are met:

- Redistributions of source code must retain the above copyright
notice, this list of conditions and the following disclaimer.

- Redistributions in binary form must reproduce the above copyright
notice, this list of conditions and the following disclaimer in
the documentation and/or other materials provided with the

- Neither the name of XXXXXXXX nor the
names of its contributors may be used to endorse or promote
products derived from this software without specific prior
written permission.
I do not intend to redistribute the software, but rather to use it as part of my own business model. So only the last paragraph seems relevant to me. So my question is:

How do I ask him for permission to use his software in my business under Intellectual Property Law given (a) his work is partially derived from / inspired by mine, (b) both of our programs are built on the same 3rd person's IP, and (c) (just to really make things fun) the original author of the work is American, and my PhD was published in the US? I am Australian and my business is registered in Australia, and the second programmer is Canadian.

Many thanks for any assistance.


Hi Colin,

Copyright protects the original expression of ideas, and not the ideas themselves. Therefore, the copyright in this program attaches to the actual sequence of code, not the idea behind why it is sequenced that way. Copyright doesn't protect you against independent creation of a similar work. Therefore, the fact that you have created a similar programme is of no legal value in negotiating a licence to use the other guy's copyrighted program. It stands on its own as a copyright protected piece.

Although copyright laws differ from country to country, I believe Australia, Canada and the US are all parties to various international treaties that provide protection to copyright holders of international work. Therefore, the location of the writers in this case is immaterial.

Unless you want to write and adapt your own program, you will have to obtain permission off this guy.
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