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?

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.

2. 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.

Now that the legal framework of copyright has been set, we can discuss the decision of the Haupt’s case accordingly.

3 DISCUSSION OF THE HAUPT’S CASE

3.1 Establishment of the infringement

As pointed out above this is a case of an alleged infringement of copyright in computer programs.

First, for infringement of copyright to be established, it is submitted that a plaintiff must satisfy two tests:

– a causal connection between the alleged infringement and the copyright work;
– there must be objective similarity

In the case at issue, the infringement is clearly established since these two tests are satisfied, indeed there is a causal connection between the copyright work and the infringement because some portions of the work have been copied, creating therefore an objective similarity.

Nevertheless, the question that can come to one’s mind is how come the program was created by the first respondent and it is the appellant who is considered as the author while there was no employment contract. It is simply because according to the Copyright Amendment Act of 1992, the copyright of computer programs vests not in the programmer who created the program but in the person who exercised the control over the making of the program, which is here the appellant.

No doubt that this decision is consistent with the Copyright Act. But is the approach taken by the Act the most suitable for the protection of copyrights in South Africa?

3.2 Suitability of computer programs copyright protection in South Africa

As noted above, South Africa has taken a position utterly different from most of foreign jurisdictions and the WIPO as well in the issue of computer programs copyright. Indeed, since 1992 computer programs are no longer protected as literary works with the implication that the copyright in the former programs has shifted from the creator of the work to the person exercising control over the making of the program.
What is the rationale of this approach when one knows that copyright is a legal means to encourage and protect human creativity and innovation?

It seems to me a peculiar position, since it takes away all the rationale of copyrights. Roos (“Rabble Rousing for Cyber Heads: Development in South Africa’s IP law and international investment concerns” (No 82/2006), CIPS), on the other hand, contends that the fact that the copyright is shifted from the real creator to the person who exercises control over the making of the program does not really matter since the copyright still exists.

I definitely do not share this position, my personal opinion is that: to award copyright to the wrong person is nothing else that negation of copyright.

But where I agree with Roos is when he states that this decision will not scare off potential investors, since the investors have after all a coinciding interest with the party in which favour the court found.

So, as far as I am concerned, what I can say is that the rationale followed by the legislature in passing the Copyright Amendment Act of 1992 is more economic than copyright oriented. Indeed it strengthens the position of parties already strong by giving them more power and does not really protect nor encourage human creativity by defending the works of the mind.

Is this difference between South Africa and other jurisdictions and international bodies merely superficial?

3.3 South African approach contra international approach

As mentioned by Roos, the mere difference between the South African and the international handling of a computer program should not be confused with the prospect of less protection. Nevertheless does not the difference in this instance amount to discrepancy?

Roos contends that there is no discrepancy since South Africa protects the copyright in computer programs. He contends that the difference is merely superficial.

I do not agree with Roos on this point, I am of the view that the difference is substantial. Indeed, as we have seen in the second section, the WCT protects computer programs as literary works while South Africa protects computer programs as a category of its own. The copyright vests in the creator of the work in terms of the WCT while in South Africa, the copyright vests in the person exercising control over the making of the computer program. That makes all the difference, which definitely amounts to discrepancy.

How can programmers protect themselves against the flaws of the legislation?

3.4 Contractual clauses

It is fortunate that programmers have still a way to protect their copyrights in the computer programs they are creating through contractual clauses stipulating that the copyright vests in them. Indeed, as submitted by Roos, “most programmers with an interest in retaining the copyright should reasonably negotiate that the copyright vests in them”. But are programmers really in a position to negotiate any copyright clause favouring them with parties far more powerful than they are? Therefore the efficiency of these clauses in protecting the programmers’ rights is still to be seen.