Copyright - Software
What is Software?
A single software package is likely to embody a number of different “works” defined and protected in terms of the Copyright Act 98 of 1978, for example, literary works, musical works, artistic works, sound recordings, published editions and computer programs. Therefore, although the Copyright Act does not specifically mention “software” as a protected work, copyright can subsist in the different works that come together to create software.
Generally, the source code of a computer program is protected as a “computer program”, while flow charts, notes and other written works made along the way will be protected as “literary works” in terms of the Copyright Act.
The Copyright Act defines “computer program” as “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”.
In terms of the Copyright Act, the author of a computer program is the person who exercises control over the making thereof. In the case of computer-generated computer program, the author is the person who makes the necessary arrangements for the creation of the work.
Generally, the author of a literary or artistic work is the person who first creates the work. However, if the work is made in the course of the creator’s employment by the software developer under a contract of service or apprenticeship, the employer is likely to be the owner of the copyright. The question of ownership depends on the facts and interpretation of the employment contract.
Potential copyright problems arise where the authors and creators assisting the software developer are not employees, but, for instance, freelance writers or designers. As copyright in a work vests the exclusive right to do or to authorise certain acts in respect of that work, including inter alia reproduction, publishing and adaptation, it is extremely important that the software developer arranges to take assignment of the copyright in such works.
If you are interested to develop a software product and commercially exploit it, it makes sense that all the copyright and other intellectual property rights (such as patents and trade marks) should be consolidated and owned by a single entity such as a close corporation or company. In this regard, it is important to note that copyright assignments and exclusive copyright licences are only valid if in writing and signed by the assignor or licensor.
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