Software Development and Copyright.

Some years ago, I wrote a guide for software developers to briefly explain how copyright law applied to software development. Little has changed since I wrote that guide – the legislative landscape remains much as it was and the South African courts do not deal with copyright in software a great deal. Nonetheless, there have been a few developments which warrant an update.

I have kept the guide as non-legalistic as possible, but I will occasionally quote from case law and the Copyright Act (which governs this area of law). This guide is not meant to be an exhaustive examination of the law of copyright, but hopefully will go some way to explaining how software development interacts with the law of Copyright.

First the basics: when is a work eligible for copyright protection? The Copyright Act 98 of 1978 lists the types of work that are eligible for copyright protection. There are quite a number of these, many of which would not occur to anyone not involved in the fields concerned:

• literary works;
• musical works;
• artistic works;
• cinematograph films;
• sound recordings;
• broadcasts;
• programme-carrying signals;
• published editions;
• computer programs

Note that only original works are protected. The work does not have to be a creation of genius to qualify for copyright protection, but enough skill and effort must be expended on its creation to give it a character of its own.

You will notice that I use the term “software”, while the list above refers to “computer programs”. The reason for this is that software usually consists of a combination of two or more of these types of work. For example, a typical application may include source or object code (“computer program”) a database (“literary work”), graphics (“artistic works”), or even “sound recordings” and “cinematograph films”. For this reason, I will refer to “software” as being the final product combining the constituent works.

Copyright is conferred on an eligible work as soon as it is created – no registration of copyright is necessary.

The two types of works that concern us primarily here are literary works and computer programs, the definitions of which are the following in terms Section 1 of the Act:

‘literary work’ includes, irrespective of literary quality and in whatever mode or form expressed –

1. novels, stories and poetical works;
2. dramatic works, stage directions, cinematograph film scenarios and broadcasting scripts;
3. textbooks, treatises, histories, biographies, essays and articles;
4. encyclopaedias and dictionaries;
5. letters, reports and memoranda;
6. lectures, speeches and sermons; and
7. tables and compilations, including tables and compilations of data stored or embodied in a computer or a medium used in conjunction with a computer, but shall not include a computer program;

and

‘computer program’ means a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result;

Text files, database table structures and data contained in databases are thus classified as “literary works” under the Copyright Act, and source code (and executables compiled from it) are “computer programs”.

If a person owns copyright in a work, then that person can enforce the copyright if anyone else makes unlicensed copies of the work or does any of the other things that are reserved to the copyright owner. So who is the owner?

Generally speaking the author of a work is also the owner of the copyright on that work. Unfortunately the relationship is not always so straightforward, as we will see.

Ownership in copyright is vested in the author in terms of Section 21 (1) (a) of the Act. Where there are two or more authors, then ownership vests in all of them as co-authors.

What then is an author? The definition of “author” in section 1 of the Act is as follows:

‘author’, in relation to-
a literary, musical or artistic work, means the person who first makes or creates the work;
…

1. a computer program, the person who exercised control over the making of the computer program;

 

Working out the author of a literary work is straightforward (and note the definition of a “computer-generated” work), but establishing the authorship of a computer program is not so easy. Our courts have not set out a hard-and-fast rule for what “control” means in the context of making a computer program, but certainly the commissioner of a computer program does not have to be in direct supervision of the programmer to be considered to control the making of the computer program.

It is enough if the commissioner (the person who orders the program to be written) sets out detailed instructions to the programmer and the programmer submits the work to the commissioner for approval as it is completed

[ref]See Anton Charl Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Limited & others [2006] JOL 17063 (SCA)[/ref]. In such a case the commissioner, rather than the programmer, would probably be the author. It is less likely that a commissioner who merely provides the programmer with a scope of work or high-level functional specification would be considered the author of the computer program as he or she would probably not be considered to be in “control” of the creation of the computer program.

An important exception to the rule that the author of a copyright work is also the owner is where the author creates a work in the course of his or her employment. See section 21 (1) (d):

Where … a work is made in the course of the author’s employment by another person under a contract of service or apprenticeship, that other person shall be the owner of any copyright subsisting in the work …

The key above is of course the phrase “in the course of the author’s employment”.

[ref]King v SA Weather Service [2009] 2 All SA 31 (SCA)[/ref] Once again our courts have not given clear guidance as to how this should be interpreted. The leading case on the point held that this is a factual matter and depends on the circumstances of each case. However, the court went on to list a number of criteria that it took into account in reaching its conclusion, which are useful if one wishes to anticipate how a court might approach the same question in future:

• How closely does the work created by the employee relate to the business of the employer? The more closely the work relates, the greater the likelihood that the court will find that it was created in the course of employment.
• What are the employee’s duties during his or her employment and how do these relate to the work in question? The question should be broadly construed, so for example where a meteorologist wrote a computer program to assist with his work in analysing data as a meteorologist, the fact that he was not employed as a computer programmer does not indicate that the work was NOT created in the course of his employment. The work was created to assist with his duties and consequently was closely related to his formal duties despite the fact that he was not employed as a computer programmer as such.
• Finally, what is the causal connection between the employment relationship and the created work. Would the work have been created if the employment relationship did not exist? In the meteorologist example the answer would probably be “no”, which would go towards showing that the work was created in the course of employment.

So what about independent contractors? These are not employees but typically individuals or companies who are contracted to perform a particular task, and do not have an employment relationship with the commissioner of the work. Thus the independent contractor will be the author (and hence the owner) of works created for the commissioner.

[ref] Where the independent contractor is a company, the employees of the independent contractor will be the authors, the independent contractor will be the owner by virtue of the employment relationship, and the commissioner will be in need of a lawyer.[/ref] In the case of software this can lead to the weird outcome that an independent contractor would own copyright to a database created for the commissioner (as a literary work), but the commissioner, if he or she exercised close enough control over development, would be the author and hence the owner of the computer program (code) itself.

The solution of course is to enter into a proper software development contract which deals with ownership of all constituent works of the software created by the independent contractor.

What happens if you make adaptations to a work where the copyright in that work is owned by another person? Who owns the copyright in the adaptations? What if you take someone else’s source code, make changes to it and then distribute it under a different name?

The answer lies in section 2 (3) of the Copyright Act which reads:

“A work shall not be ineligible for copyright by reason only that the making of the work, or the doing of any act in relation to the work, involved an infringement of copyright in some other work.”

So copyright in the adaptation itself is owned by the person who made the adaptation. HOWEVER, the original owner’s copyright is not extinguished, so that adaptation is still an infringing copy of the original work. The original copyright owner can thus prevent the adaptor from using the adaptation.

A good example of this scenario was addressed on appeal in the case of Haupt v Brewers Marketing Intelligence (Pty) Ltd.

[ref]Anton Charl Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Limited & others [2006] JOL 17063 (SCA)[/ref] In this case Haupt was employed by Brewers Marketing Intelligence, and while in their employ he oversaw the partial development of certain software. As he was an employee of Brewers Marketing Intelligence, copyright in the source code was owned by Brewers Marketing Intelligence. He subsequently left Brewers Marketing Intelligence and completed development of the software.

Brewers Marketing Intelligence then obtained a copy of the final version of the software and distributed it, with a few further changes, as its own. The court held that even though Brewers Marketing Intelligence held the copyright in the original computer program, Haupt held the copyright in the alterations, and that hence Brewers Marketing Intelligence had infringed Haupt’s copyright by adapting and distributing it.

So what constitutes infringement of copyright? The essential elements are the following:
Firstly, the work in question should be eligible for copyright in the first place as I have explained above.

Secondly, there must be a violation of exclusive right of copyright owner. These “restricted acts”, which only the owner of copyright may perform, differ depending upon the types of protected work. Those of a literary work include: copying, publishing, performing and adapting the work. Restricted acts for a computer program include those for a literary work, as well as letting or hiring out the computer program.

Thirdly, there must be a “causal connection” between the original work and the infringing work. In other words, if there are allegations of copying, there must be proof of actual copying; merely showing that there is similarity without actually showing that a copy was made and that there was not a mere fortuitous similarity is not good enough.

Fourthly, there are certain circumstances where acts that would otherwise be infringements are “excepted”. For example, you can make copies of literary works “…for the purposes of research or private study by, or the personal or private use of, the person using the work…” (section 12). In the case of a computer program, you can make copies for backup purposes if the backup is “intended exclusively for personal or private purposes” (section 19B).

Finally, the infringement must be substantial, which I deal with below.

There is common myth that you can avoid infringing copyright in a computer program by changing a few lines of the source code and thus creating something original. This is not so. While you will have copyright in the changes that you make, the original copyright in the computer program will remain. However, it is true that in order to infringe copyright you have to perform a “restricted act” in respect of a substantial portion of the work in question. The question then arises as to what a substantial portion actually is.

The emphasis as it turns out is not in the quantity of material copied (or otherwise infringed), but rather the quality.

[ref]See for example Galago Publishers (Pty) Ltd and Another v Erasmus [1989] 1 All SA 431 (A)[/ref] The implication for software development then is that even if you only pilfer a few lines of someone else’s code, if it is an important part of that computer program – code that is “core” to the workings of that application, then you will be liable for infringement of copyright in that computer program.

What can be done if copyright is infringed? There are essentially two remedies: the infringing party can be interdicted from continuing with the infringement and / or can be sued for damages (there are other remedies which are beyond the scope of this guide).

It may seem at first sight that being sued for damages would be the most serious for the infringing party, but this is often not the case. In the ICT industry particularly, an interdict would prevent the infringing party from using the software containing, for example, a fragment of someone else’s source code. If that software is mission-critical for the infringing party, that party’s business may come to a halt as a result of the interdict.

This has been a very brief discussion of the law in this area and is of course a guide and does not constitute legal advice. However, if you have a particular question you would like answered or if you would like me to include other material in future versions of this guide, please feel free to contact me.