Page 35 - EngineerIT October 2022

LEGAL VIEW

(2019/790) provides an infringement
exemption for temporary
reproduction which is transient or
incidental and an essential part of a
technological process.

1992 Amendment of
Copyright Act
Even the conclusions regarding
copying of a computer program may
not be as straightforward as they at
first appear above, despite the fact
that there may be no actual copying
of the code during the use of a web-
based application.
Before computer programs were Dina Biagio Patrick o’ Brien
introduced into the South African
Copyright Act in 1992 as a distinct
category of work which is eligible reasoning, there is an argument that the GUI works reproduced on the computer
for copyright protection, they were of a user of a web-based application is a reproduction of the computer program
considered a class of literary work. In itself, despite the fact that the actual computer program is not copied. However,
the case of Pastel Software (Pty) Ltd the 1992 amendment, introducing computer programs as a distinct category of
v Pink Software (Pty) Ltd and Another work, made further provisions expressly stating that computer programs are not
1991 JOC (13) (heard pre a literary work. The definition for “computer program” was included as “a
the 1992 amendment), Unfortunately, set of instructions fixed or stored in any manner and which, when used
the respondent was when it comes to directly or indirectly in a computer, directs its operation to bring about
sued for reproducing copyright, things are a result” (emphasis added). The definition appears to allude to the fact
the same result as the never simple! that a computer reproduces a computer program when executed, the
applicant’s accounting consequence being to bring about a result, but that this does not mean
software, including visual that the result is a reproduction of the computer program. Post-1992, this
elements that constitute GUI works, seems to be the generally accepted approach. According to this, a second product
notwithstanding the fact that the that delivers the same result by means of a different computer program does not
respondent did not have access to amount to a reproduction of the first computer program and is therefore not an
the applicant’s source code. The infringing copy (although there may be infringement of the copyright subsisting in
court found that it is the source code the results).
that is responsible for producing
the GUI works, when used, and that Conclusion
copying the screen layouts amounted While copyright and copyright infringement are complicated and fraught with
to copying of the source code (which uncertainty, probably, at the very least, the unauthorised display of GUI works on
was regarded as a literary work at the computer of a user of a web-based application will constitute a reproduction of
the time). Accordingly, the court those works and will amount to copyright infringement (if copyright subsists). n
found that the respondent had
infringed the applicant’s copyright in About Spoor & Fisher
its source code, despite the fact that Spoor & Fisher is Africa’s largest specialised intellectual property law firm, with
the respondent did not have access African roots and global reach. The firm specialises in all aspects of IP law, including
to, and could not have copied, the trademarks, copyright, patents, registered designs, anti-counterfeiting, commercial
applicant’s source code. work with an IP flavour and litigation in these fields.
Following this line of www.spoor.com

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