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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: |
