This article discusses a recent South African judgment dealing with alleged copyright infringement of a computer programme, Emisha Software (Pty) Ltd v Servsol Software Solutions CC and others, 6 June 2024, Ntlama- Makhanya AJ.
The judgement offers a basic overview of South African copyright law as it now is, which readers may find helpful, noting that the copyright legislation is in the process of being amended and modernised.
The applicant is Emisha Software ("Emisha") which considers itself to be the sole owner of a computer programme known as the Insurance Guard System programme ("the IGS programme"). Emisha felt that its copyright in the IGS programme had been infringed by a company called Servsol Software Solutions CC ("Servsol") the respondent. Emisha launched High Court proceedings in which it sought, inter alia:
- an interdict; and
- an order for an enquiry into the damages suffered, or a reasonable royalty to which it is entitled as a result of the unlawful infringement of its copyright.
Servsol defended the case, denying that Emisha has exclusive ownership of the IGS programme. It claimed that it is a co-owner of the IGS programme, following an informal agreement and a relationship with Emisha that has run for some 14 years and involved substantial fees.
The IGS programme is, according to the judgment, 'designed to conduct business in the field of debt counselling ...(it) calculates insurance quotes, manages and issues policies, manages bulk policy replacements, and allocates and manages premiums on behalf of the insurer in accordance with the regulatory requirements... Ultimately, it is a set of instructions fixed or stored in a way, when used, (in)directly in a computer, directs its operation to bring about a result. It accordingly constitutes a computer program as defined in the Copyright Act 198 of 1978.'
It was alleged that the IGS programme was first released towards the end of the year 2016, and that Servsol, described as the 'developer' of the programme, does not own the copyright but that the copyright belongs to Emisha, which has the exclusive right to reproduce, adapt and broadcast it. Emisha discovered, however, that Servsol had been loading new clients onto the ICS programme without its consent. Emisha also discovered that it had lost access to the IGS programme in June 2023, whilst it was still paying Servsol a significant fee.
Acting Judge Ntlama-Makhanya started with certain observations on copyright in South Africa. The judge referred to the judgment of Judge Harms in the Supreme Court of Appeal (SCA) case of King v South African Weather Services (716/07) [2008] ZASCA, and made these observations:
- Copyright is a creature of statute and has to be found within the four corners of the Copyright Act 98 of 1978.
- Certain defined works such as computer programmes are eligible for copyright under the Act.
- In the case of a computer programme, the author is 'the person who exercised control over the making of the computer program.'
- The author of a work that attracts copyright is usually the first owner of the copyright, although this is not always the case. An exception, which applies to computer programmes amongst others, concerns the case of a work 'made in the course of the author's employment by another person under a contract of service':
- The exclusive rights of the owner 'depend on the nature of work. In the case of computer programs, the important rights are those of reproduction, adaptation and rental.'
- In addressing the problems associated with computer programming the Copyright Act defines a computer program to include 'a version of the program in a programming language, code or notation different from that of the program, or a fixation of the program in or on a medium different from the medium of fixation of the program''.
- The foundation for an interdict (injunction) based on copyright infringement is the following: a clear right to stop the alleged copyright infringement; conduct on the part of the respondent that constitutes copyright infringement; no alternative remedy to satisfy the claim – see in Claasen v TEC Novation Solution (Pty) Limited(2017/40521) [2018] ZAGPPHC para 7).
Regarding co-ownership of the copyright, the judge held that 'the first respondent admits that it is not the owner and does not have any right in the IGS program ... Thus, this Court is of the view that the first respondent has not satisfied the requirements of co-ownership in that there is no legal basis upon which co-ownership could be claimed.'
The application for an interdict was, accordingly, granted.
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.