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13 April 2020
The Copyright Act (98/1978) governs copyright law in South Africa. Computer programs are eligible for copyright protection under the act 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 the copyright in a computer program has the exclusive right to reproduce the computer program in any manner or form and to make an adaptation thereto. The owner may also authorise others to perform the aforesaid acts.
However, the owner of the copyright in a computer program cannot object if a third party mimics the functionality of the computer program, provided that the third party had no access to its source code. 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.
However, it must be borne in mind that 'computer software' comprises a computer program and associated input and output data. Input and output data (eg, data 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 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.
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