De Kock Attorneys Copyright

Copyright - Software

What is Software?
There is no statutory definition for “software”. In practice, software can perhaps be defined as “organised collections of computer data and instructions”. It is possible to distinguish between two categories of software, namely system software and application software. System software generally consists of an operating system and utilities that enable a computer to function. Examples of system software include disk formatters, file managers, display managers and text editors. Application software relates to programs that are used to accomplish specific tasks for users, other than just running the computer system. Examples of application software are spreadsheets, text processors and database management systems.

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”.

Who owns Software?
If you are a software developer, it is likely that other persons will assist you to develop the different works incorporated in the final software product. It is important to consider the contributions and capacity of each person involved, as this could effect the ownership in the product as a whole.

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.

How to protect software?
Software may incorporate a number of different forms of intellectual property. In this regard, protection could be considered on the following levels:

  • Trade mark registrations: A trade mark is a means of identifying a product in trade. Consideration should be given to registering the name of the product as a trade mark. The same applies to any logos, devices or slogans associated with and used in relation to and on the software product.
  • Patent registrations – If the product relates to new technology, patent protection could be considered.
  • Know-how and confidential information – Unpatentable technical and other aspects relating to software can be protected by non-disclosure and confidentiality agreements. Employment and software development agreements could also include restraints. Software maintenance agreements should also cover confidential information.
  • Copyright protection – Unfortunately, safe for cinematograph films, it is not currently possible to obtain registration for copyrighted works in South Africa. A single software product may incorporate different “works” which may enjoy automatic protection under copyright law, provided that the certain requirements are met. These requirements include that the works must be original and reduced to material form. Originality in this context means that that adequate skill and labour have been spent creating the works. The works must furthermore not be copied from other works. Protect yourself by regularly making print-outs of the product as it is being developed and make sure that the print-outs are dated, marked with your name and kept in a save place. Apply copyright notices on the final product. Enter into written agreements with all contributors and take assignment of all copyright. Software licence agreements should furthermore be considered for the use of the software by end users.

Need further advice?

The comments above are general remarks. If you require proper advice or a legal opinion, please contact us with instructions. We are also in the position to assist with the drafting of appropriate software and licensing agreements for your products.

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