2. Works Eligible for 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;
- 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 –
- novels, stories and poetical works;
- dramatic works, stage directions, cinematograph film scenarios and broadcasting scripts;
- textbooks, treatises, histories, biographies, essays and articles;
- encyclopaedias and dictionaries;
- letters, reports and memoranda;
- lectures, speeches and sermons; and
- 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;
‘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”.