Page 34 - EngineerIT October 2022

LEGAL VIEW

Understanding copyright and

infringement of cloud-based

software

By Dina Biagio, partner, and Patrick o’ Brien, associate, at Spoor & Fisher

n the last decade or two, there have been significant advances in cloud Infringement of other
computing, the provision of software-implemented services (Software-as-a- copyright works
IService or SaaS) and web-based applications. These offerings rely on software Unfortunately, when it comes to
that runs on a remote server and are accessed by users from their own computers copyright, things are never simple. A
via a network connection (rather than being locally installed on the internal software product is usually a complex
memory of a user’s computer). Remember when we used to install applications on work in that it is comprised of a number
our computers using a compact disc (CD), or even a floppy disk before that? Gone of different copyright works, as these
are those days. are defined by our Copyright Act.
While the source code constitutes a
Protection of computer programs computer program, there are typically
Software enjoys intellectual property protection afforded by copyright. Copyright other works that come into being when
subsists automatically in an original work that is reduced to material form (without running the computer program, such
the need for registration). The Copyright Act defines different categories of as those displayed or performed via a
copyright works which qualify for copyright protection, including a “computer graphical user interface (“GUI”). These
program”. GUI works may also qualify as literary,
As the word suggests, copyright generally prevents copying. But what are musical or artistic works, for example.
the implications of this for software vendors, resellers and licensees, When a user runs a web-
Before
particularly when software is hosted ‘in the cloud’? based application, the
computer programs GUI displays these
Infringement of copyright in a computer program were introduced into the other works on the
Conventionally, a computer program would be copied when South African Copyright Act user’s web browser.
installed onto the internal memory of a user’s computer in 1992 as a distinct category This is in itself a
and again reproduced, at least in part (and temporarily) in of work which is eligible for reproduction of the
the Random Access Memory (RAM) of the computer when copyright protection, they works on the user’s
used. Nowadays though, a provider creates a cloud offering by were considered a class of computer and assuming
combining software applications with operating systems, drivers and literary work. that copyright subsists
other programs that enable remote access by a user. What this means in these works (for example,
is that the computer program of the application is physically present on the that they meet the requirement for
cloud provider’s server, which is accessed by a user via a network. The user does originality), this copying will constitute
not gain access to this copy of the program code on the cloud server but merely copyright infringement, if unauthorised.
gains access to the functionality of the software. Any command by the user is Does this mean that you need a
executed by the cloud server’s processor, which reproduces, again temporarily, bits licence to display on your computer,
of code from the RAM into its cache memory. the works generated when you access
It seems, therefore, that for cloud services and web-based applications used a website? Simply, the answer is,
remotely, copying of the computer program is carried out by the provider, and not “yes”. It is no surprise then that a
by users on their computers. 2019 European copyright directive

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