Computer Programs Copyright Protection in South Africa

INTRODUCTION

This paper gives a modest contribution to the issue of computer programs copyright and its protection under South African law. It uses as a case study the decision of the Supreme Court of Appeal in Haupt T/A Soft Copy v Brewers Marketing Intelligence (Pty) Ltd and Others 2006 (4) SA 458 (SCA) (the Haupt’s case). What is the implication of this decision for South Africa in terms of copyright protection? Is South African copyright protection of software too soft? What consequences this decision can entail as far as software industry is concerned in South Africa? Can it scare off potential investors? https://itrainkids.vn/category/tin-tuc/

Here are some of the issues the paper is looking at. The paper is divided into three sections. The first section will give a brief view of the case, the second will deal with the concept and regulation of copyrights, finally the third will address the discussion of the case. The paper will end up with a conclusion.

  1. FACTS OF THE CASE

Haupt, the appellant, applied to the Cape High Court for an order interdicting the respondents in terms of the Copyright Act of 1978 from infringing his alleged copyright in some computer programs. The High Court held that Haupt’s claim could not be sustained and dismissed the application. The decision of the Cape High Court was reversed by the Supreme Court of Appeal which set an order interdicting the respondents from infringing the appellant’s copyright in the computer programs.

  1. ISSUE OF COPYRIGHTS

2.1 Concept of Copyrights

2.1.1 Definition

Copyrights are referred to as rights to ensure protection of information from duplication and distribution. They are a subset of intellectual property rights that aim to create a balance between the rights of an individual against those of the public by conferring the author or creator of a work the exclusive right to control and profit of his work.

2.1.2 Infringement of Copyright

The most relevant infringing activities to computer programs involve “copying”, “adapting” and publicly distributing the work. In each case the activity can be in relation to the whole of the work or a substantial part of it.

2.2 Regulation

Before dealing with the regulation of computer programs copyright in South Africa, regard must be had to the way this question has been addressed in other jurisdictions and internationally, since this matter has a high international scope.

2.2.1 World Intellectual Property Organization (WIPO)

Computer programs are protected as literary works within the meaning of article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or the form of their expression (article 4).

The Berne Convention provides that copyright vests in the author of a work (article3).

As illustrated below the approach taken by the WIPO is the general position throughout the world.

2.2.2 Australia

In terms of section 10(1) the Australian Copyright Act of 1968, computer programs are protected as literary works.

2.2.3 United Kingdom

Like in Australia, “literary work” has been extended in the UK Copyright (Computer Programs) Regulations 1992 to include preparatory design material for a computer program.

2.2.4 The European Union

The EU Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs requires that computer programs and associated design materials be protected under copyright as literary works within the sense of the Berne Convention.

2.2.5 Japan

Japan is one of the rare industrialized countries where computer programs are not protected as literary works. The Japanese Copyright Act 48 of 1970 under articles 21 and 27 grants the author of a computer program the exclusive right to reproduce and adapt his work.

2.2.6 South Africa

Copyrights are regulated in South Africa by the Copyright Act 98 of 1978. This Act provides copyright protection for a wide variety of works, such as literary works, musical works, artistic works, computer programs, etc. and states as a general rule that copyright vests in the person who creates the relevant work. Nevertheless since the amendment of 1992, computer programs gained a special status in terms of which the copyright vests in the person who exercised control over the making of the computer program, rather than the programmer who created the work.