New IT & Software Documents

January 2010

Software and Databases form the basis for this month's Trading folder update. Simply-docs has created and released three new sets of documents:
- Database Agreements
- Beta Software Testing Agreements
- Open Source Software Licences

Database Agreements

Databases are all around us. Data is essential to the provision of goods and services by organisations in every conceivable sector from non-profit government departments to international conglomerates. Data in one form or another permeates virtually every aspect of our lives. As such, data is a highly valuable commodity and an essential component of any economy.

In order to produce a database, a crucial ingredient is required: data. Data can be acquired from a wide variety of sources. In some cases it will be collected directly by the creator of the database. In other cases, it will be acquired in its raw form from other parties. Simply-docs has created a new Data Purchase Agreement designed to govern such transactions.

The Data Purchase Agreement is to be used by the owner of a database who is purchasing data for the purposes of creating or refreshing a database. That database will, in turn, be accessed by subscribers. The agreement addresses important factors such as the formatting of the data, restrictions on the use of the data and copyright protection.

Data cannot be a free-for-all. Data protection legislation strictly regulates the use of personal data. The law of commercial confidence protects data which organisations wish to safeguard as confidential. Intellectual property law (copyright) protects not only the data within a database, but also the database itself as a "literary work". Furthermore, provided that the creator of the database makes a "substantial investment" in obtaining, verifying or presenting the contents of the database, it may be protected under the database right, stemming from the Copyright and Rights in Databases Regulations 1997.

In order to successfully open up a database to subscribers, the owner of a database must ensure that all rights and indeed its own investment are protected. Some databases will be relatively simple, containing basic data requiring only minimal restrictions. Others will be more complex, consisting of data from multiple providers, subject to strong protections and restrictions. Three new documents from Simply-docs address this area.

The Online Data Subscriber Agreement is designed to deal with the supply of online information or data to businesses and regulates the relationship between the owner of a database and subscribers to that database. This document contains a large number of measures to protect the database and to restrict subscribers' use of both the database itself and the data within it. Highly detailed provisions address key factors including access and usage restrictions, copyright, confidentiality and liability.

For simpler and / or smaller databases, the Individual Database Licence or the Simple Online Database Licence Agreement may be more appropriate. These licence agreements are particularly suited to situations where a small business or sole trader wishes to acquire a relatively simple set of data for use in their business such as mailing lists and other essential marketing data. Essential protections are provided for in these documents, including usage restrictions and copyright. Further Details on these documents can be found on their respective pages which are available through the links to the right.

Beta Software Testing Agreements

Testing is an essential part of the software development process. Whether the software in question is a new version constructed from the ground up or a simple patch or service pack, it must be tested on a range of different computers in order to identify bugs, errors, flaws or shortcomings.

In-house testing is important, but cannot allow the developer to adequately assess the software's performance in the real world. This is where beta testing comes in. Often beta testing is done in the form of an "open beta". Users will generally download the software for free, subject to terms and conditions (and usually an in-built time limitation). For software that is more specialised however, a "closed" format may be preferred.

Beta software is inherently flawed and incomplete. There is thus always the potential that it may cause harm to a user's computer or data. The terms and conditions of any beta programme must therefore ensure that the user is aware of such risks and that the developer is accordingly protected and shielded from any liability for damage suffered by the user as a result.

Two types of beta testing documents have been created.

The first type is best suited to a closed beta test conducted in an end-user's business environment. Two separate agreements have been created under this heading. The first is for use in situations where the beta software will be tested on the tester's own equipment; the second for situations where the tester uses equipment loaned to them by the developer for the specific purposes of testing the beta software.

The second type takes the form of two sets of terms and conditions and is designed for public beta programmes whereby users "sign-up" for the beta and download the software over the internet. Two variants have been created. The first is designed for an open beta programme which is open for everyone. The second is designed for closed beta programmes whereby users must submit an application for consideration by the developer prior to being given access to the software.

Open Source Software Licences

Much of the software available today is heavily protected by licence agreements. Software licences are designed to govern users' use of the software products to which they are applied. Many software licences are designed to limit the activities which users may perform. Copying, redistribution and modification are common activities which a licence will restrict. Intellectual Property rights are carefully guarded by such documents.

Not all software is so restricted, however. Open source software is generally free of many of the restrictions that are inherent in proprietary software. Users of open source software are usually free to change, improve and redistribute the software.

Open source software is becoming increasingly common. It is now entirely possible to have a fully functional computer, suitable for home or business use (and meeting all the needs thereof) using virtually nothing other than open source software. In many cases, the software licences used with such software will be quite different to those used in proprietary software.

Simply-docs has reproduced several of the most popular open source software licences with the approval of the Open Source Initiative. These documents, which are available through the links to the right, are available for free from the Free document folder or (for convenience when browsing other IT & Software related documents) in their own sub-folder in the Trading document folder. The links to the right direct visitors to the free copies.

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.