South Africa: Software Developers Pasop/Beware/Qaphela/Hlokomela

Last Updated: 13 July 2018
Article by Dawid Prozesky

Section 2 of the South African Copyright Act 98 of 1978 (the "Act") states that computer programs are eligible for copyright protection in South Africa. A "computer program" is defined by the Act 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".

What does this mean in plain language? It means that if you write any source code or compile any object code from your source code, then that code is automatically afforded copyright protection merely by virtue of you writing or compiling your code. Unlike patents, trade marks or designs, there is no need for you to register for copyright protection. Although this sounds fairly straight forward, there are some major "potholes" that you must beware of as a South African software developer, and this article aims to give you the idiomatic 101.

The first pothole: are you or have you been working under a contract of employment? Section 21 of the Act states that you as the "author" of your code become the owner of your code. If you are a co-author, then you become a joint-owner. However, where you write or compile your code during the course of your employment under a "contract of service", your employer owns your code. This is a very important consideration. It begs the following set of questions: do you have an employment contract, not merely a once-off contract for a project or a retainer? If no, then please proceed to the next porthole. If yes, then you have to ask yourself the next question of whether that code which you "authored" was actually done in the course of your employment?

As frustrating as it is, there are no hard and fast rules as to when you develop your code within the course of your employment. There are however some guiding principles that you could follow to answer this question. Firstly, look at the scope of work done by your employer, is the code that you have developed within this scope? Secondly, what are your duties under your contract of service? Are you actually employed as a computer programmer? Finally, and almost most importantly, is there a close connection between the code that you developed and your employment? If the answer is yes to all the questions above, then according to the Act your employer most probably owns the copyright in your code and you can rest peacefully at night.

In the event that you have now established that you do not have an employment contract, or that your code was not developed within the course of your employment, this brings up the second pothole. Are you actually the "author" of your code, and thereby in terms of the Act, the owner of your code? "Author" in terms of computer programs is defined in the Act as "the person who exercised control over the making of the computer program". The issue: you have a once-off contract, or under a retainer with another person or company, and you are instructed to develop a specific application comprising some source code which you wrote. If the other person or company does not actually direct in which direction the development should proceed or lacks the authority to terminate further development should it wish to do so, then you are the author, and thereby the owner of the copyright vesting in that code. It is important here to note that for purposes of exercising control, the other person does not have to be a computer programmer to be able to control the writing of the code.

Now, upon going through the above potholes and questions you uncover that at some point in time you where the "author" of some piece of code. Your code was not developed under an employment contract, or that code which you developed did not fall within the course of your employment. However, you authored this code for someone else and they paid you for your service. They must surely be the owner of the copyright in the code? Not necessarily.

The final pothole: copyright can only be assigned in writing. The mere fact that someone has commissioned the development of software, and thereby the underlying code, and paid you for your service does not mean that they own the copyright in the code. If you exercised control over the development, and there is no written agreement signed by yourself stating that the copyright is assigned to the other party, then you remain the owner of the copyright in your code.

This means that you maintain the exclusive right to do or authorise the reproduction, publishing, performing, broadcasting, transmission, adaptation, or copying of the code. Note, however, that the person who has commissioned the code would still be in lawful possession of the code by virtue of your agreement and they would be entitled to copy the code for back-up purposes or for personal or private use. Furthermore, by virtue of the agreement, a non-exclusive license to use the code as intended is to be inferred. Warning: no exclusive license could be inferred, and save for any contractual term indicating otherwise, you would still be able to licence use of your code to any other third-party.

As you have now come to see, copyright and the ownership thereof when it comes to computer programs is a complex issue. With the looming Copyright Amendment Bill, it will become even more complex. The best advice that you can follow going forward is to make sure that you, as independent software developer, record all your agreements in writing, making sure to keep a copy on hand. This will clarify your position to your advantage and to the advantage of your clients and in the process prevent any unwanted disputes going forward.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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