The Copyright Act 98 of 1978 (the Act) governs the law of copyright in South Africa. In terms of the Act, a computer program is eligible for copyright protection if certain conditions are met.

The Act defines a computer program as "a set of instructions fixed or stored in any manner and which, when used directly in a computer, directs its operation to bring about a result." From this definition it is apparent that source code forms the subject matter of copyright protection as a computer program.

Among other things, the owner of copyright in a computer program has the exclusive right to reproduce the computer program in any manner or form and to make an adaptation of the computer program. The owner may also authorise others to perform the aforesaid acts.

However, the owner of copyright in a computer program may not object if a third party mimics the functionality of the computer program: Provided the third party did not have access to the source code of the computer program. It is a fundamental principle of copyright law that protection is afforded to material expressions of a work and not to the underlying ideas of a work.

It must be borne in mind though that "computer software" comprises a computer program and associated input and output data. Input and output data (e.g. data and/or representations of the data which are displayed on a screen), may qualify for copyright protection as literary works. Here, a third party mimicking the functionality of a computer program may not reproduce and/or make an adaptation of the input or output data associated with the computer program.

Therefore, black box programming would not infringe the copyright subsisting in a computer program, but care should be taken not to infringe the copyright subsisting in the data associated with the relevant computer program.

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.