This paper gives a modest contribution to the issue of computer programs copyright and its protection under South African law. It uses as a case study the decision of the Supreme Court of Appeal in Haupt T/A Soft Copy v Brewers Marketing Intelligence (Pty) Ltd and Others 2006 (4) SA 458 (SCA) (the Haupt’s case). What is the implication of this decision for South Africa in terms of copyright protection? Is South African copyright protection of software too soft? What consequences this decision can entail as far as software industry is concerned in South Africa? Can it scare off potential investors?
Here are some of the issues the paper is looking at. The paper is divided into three sections. The first section will give a brief view of the case, the second will deal with the concept and regulation of copyrights, finally the third will address the discussion of the case. The paper will end up with a conclusion.
1. FACTS OF THE CASE
Haupt, the appellant, applied to the Cape High Court for an order interdicting the respondents in terms of the Copyright Act of 1978 from infringing his alleged copyright in some computer programs. The High Court held that Haupt’s claim could not be sustained and dismissed the application. The decision of the Cape High Court was reversed by the Supreme Court of Appeal which set an order interdicting the respondents from infringing the appellant’s copyright in the computer programs.
2. ISSUE OF COPYRIGHTS
2.1 Concept of Copyrights
Copyrights are referred to as rights to ensure protection of information from duplication and distribution. They are a subset of intellectual property rights that aim to create a balance between the rights of an individual against those of the public by conferring the author or creator of a work the exclusive right to control and profit of his work.
2.1.2 Infringement of Copyright
The most relevant infringing activities to computer reprographic rights organisation programs involve “copying”, “adapting” and publicly distributing the work. In each case the activity can be in relation to the whole of the work or a substantial part of it.
Before dealing with the regulation of computer programs copyright in South Africa, regard must be had to the way this question has been addressed in other jurisdictions and internationally, since this matter has a high international scope.
2.2.1 World Intellectual Property Organization (WIPO)
Computer programs are protected as literary works within the meaning of article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or the form of their expression (article 4).
The Berne Convention provides that copyright vests in the author of a work (article3).
As illustrated below the approach taken by the WIPO is the general position throughout the world.