Copyright In An Increasingly DIGITAL World

By Erika Heaton

 After COVID-19 Has Passed, What Will Drive Business?

Innovation is likely to become more of an economic and business driver in the months and years ahead. This has been intensifiedby the global pandemic of COVID-19 which has, and still continues to impact each and every one of our daily lives.

 

As a result of this, the increase in new disruptive technologies[1] requires that innovators understand the complexities to ensuring the protection of their works and retention of their copyright. In a simplifiedform, copyright may be described as, an exclusive and assignable right which is given to the creator of a piece of work for a fixed number of years. In South Africa, the protection of a copyright is currently provided for in the Copyright Act 98 of 1978 (the Copyright Act).

 What Will be Protected by Copyright?

Works which are permitted for copyright protection are outlined in section 2 of the Copyright Act. While South African copyright law provides for multiple works to be protected, the focus for this article is the interplay between copyright and computer programs in an increasingly digital world. This inevitable interplay can arise in three possible situations: one, where a computer programmer writes a program while not being under any contractual obligation to do so; two, where a computer programmer writes a program in fulfilment of their obligations in terms of an employment contract; and three, where a computer programmer writes a program in fulfilment of their obligation to do so under a commission contract.[2]

 Are There Any Difficulties?

The first two instances highlighted above are far simpler than the difficulties which arise in the third instance. This is because in the first instance the computer programmer is in control of the production of the program and, therefore, will be the author and first copyright owner. In the second instance because it is very likely that the employer will be exercising control over the employee’s actions, the employer will be the author of the program.[3] However, in the third instance the issue of control remains to a great extent arguable. This issue of control is important because in the instance of a computer program the meaning given to “author” is the person who exercises control over the making of the computer program.[4]

 What About Disputes That Might Arise?

In two separate cases in our law the issue of control over the making of a computer program have arisen.[5] In both these cases the Supreme Court of Appeal came to different conclusions based on the degree of control exercised. 

As a result that innovation is likely to become an economic and business driver in the months and years ahead.  It has become increasingly important for innovators and computer programmers (who are commissioned to write a program) to be aware of  how to ensure their copyright ownership in their works is sufficiently protected.

Innovators and computer programmers are further cautioned against entering into unreviewed commission contracts which could, unknowingly to them, strip them of their copyright ownership in their works.

DPB Attorneys & Conveyancers is a full-service law firm that can assist innovators in ensuring that their work is legally protected in a world which is increasingly driven by innovation and technology.  Contact us to find out more!

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[1] To see a range of disruptive technologies, visit https://disruptionhub.com/ .

[2] R de Villiers ‘Computer programs and copyright: The South African Perspective’ (2006) 123 SALJ 315-317 at 320.

[3] Section 21(1)(d) of the Copyright Act.

[4] Contained in the definition section of the Copyright Act.

[5] Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd 2006 (4) SA 458 (SCA) and Bergh and Others v Agricultural Research Council (93/2019) [2020] ZASCA 30 (1 April 2020).