Audio Transcription of Interview on Classic FM on 5 June 2006; Computer Software

TONY BLEWITT:

Classic breakfast 102.7 and on the line Dr Owen Dean, one of the Partners at Spoor & Fisher. We are looking at intellectual property in fact this morning, Dr Owen Dean. Good morning, welcome by the way.

OWEN DEAN:

Good morning to you.

TONY BLEWITT:

We are doing ownership of copyright in computer software. It was recently stated in the press, by the way, in South Africa that the software industry is being placed in a crisis. And South Africa in being placed in breach of its international copyright obligations as a result of a recent decision of the Supreme Court of Appeal in the case of Softcopy vs. Brewers Marketing Intelligence. Now what is your comment on that one Owen?

OWEN DEAN:

Well I think an enormous amount of hype has been built up over this case and in fact the comments are quite misleading because nothing new has happened. Its almost as though someone has woken up from a deep sleep because the Copyright Act was amended in 1992 and all that has happened in this case is that the court has applied, correctly so in my view, the provisions of the Act as amended in 1992. What has caused all the excitement is that the court decided that in the case of a computer program which was written for somebody and under the control of that other person, the other person was deemed to be the author of the software and thus the owner of the copyright. That is perfectly in accordance with the Act as it has read since 1992.

TONY BLEWITT:

Ok, now how does our law grant copyright to computer programs?

OWEN DEAN:

The Copyright Act grants copyright to various categories of works and they have evolved over the years as technological development has come along, New categories of works have been created, things like, for instance, program carrying signals and a recent addition to the categories was computer software. Our law now recognises computer software as a separate category in its own right of work. In so doing it has customised copyright law to the peculiar circumstances of computer programs. One of the things which was done in doing this was to create special rules applicable to who is deemed to be the author or maker of a computer program. And that is in fact what then gave rise to the excitement out of this court case.

TONY BLEWITT:

Are databases, by the way treated in the same way as computer programs?

OWEN DEAN:

Not really because one has to get a bit technical here, but as I mentioned computer software is a category in its own right, whereas databases are considered to be literary works. Different rules apply to databases as compared to those which apply to computer software. For instance, the authorship provisions are different. In the case of a literary work, and as I mentioned a database is a literary work, the author or maker of the work is considered to be the actual compiler of the database. What happened in this case which came before the Supreme Court of Appeal is that there was kind of a close link between software and a database that was worked in terms of that software. The court in applying the principles of the Copyright Act came to the conclusion that there were different authors and thus different copyright owners for the computer software as opposed to the database.

TONY BLEWITT:

What is exactly the significance of the judgment?

OWEN DEAN:

Well it highlights that one needs to be very careful when approaching copyright. You have to be very sure that you correctly identify what category of work that you are dealing with. Sometimes the distinction between software and a database can become quite difficult to pinpoint, but one has to make that decision. And the important thing here is that you have different authors and different copyright owners arising out of what could have been seen to be one job. The important thing to remember with copyright law is that these provisions can be altered by agreement. So in other words, if I go and get an outside house to produce some software with an accompanying database for me, we can agree that notwithstanding what the Act says, I will be the copyright owner or alternatively that the actual maker will be the copyright owner. So it is not cast in concrete. One can arrange this according to the requirements of any specific situation.

TONY BLEWITT:

Now the decision in the court, does it actually plunge the South African software industry into the dark ages, as it has been claimed, or not?

OWEN DEAN:

Not at all, I mean South African copyright law is pretty well state of the art and in fact, if anything, we are possibly ahead of the rest of the world in the treatment of computer software because, as I have mentioned, we have identified it as a special category. In many countries it is simply dealt with as a species of literary work and it is not a good fit. The suit was not designed for computer software. So we have got a custom made situation where the legislature has looked at the particular requirements and the particular manners in which software is commercialised and has adapted the law accordingly. It’s a complicated issue but a lot of the problems stem from ignorance of the law, and if people take the trouble to become acquainted with the way in which the law deals with these issues, a lot of the problems can be solved. Frankly, that is what I think was the problem with this case. Proper regard was not had to the nature of the works that were being worked with.

TONY BLEWITT:

OK, Dr Owen Dean, a Partner at Spoor & Fisher. Thank you very much for joining us this morning.

OWEN DEAN:

It’s my pleasure.

Dr. Owen Dean

SPOOR & FISHER

Date published: 2006/06/05
Author: Dr Owen Dean

Tags: audio transcription classic fm computer software