however, necessary to have regard to what the time and effort was expended on. The time and effort was devoted
to making changes to a program, the copyright of which at all times vested in the first respondent. By expending
time and effort on the improvement of the program, the applicant did not, in some way, become the holder of the
copyright.
I may add that the respondents did not contend, as they may well have, that what the applicant did, was to use
confidential information gleaned during the period of his employment with the company, and to use that information
as a springboard to compete, and springboard it will remain as long as he uses a program which is based on
material filched by him (see Prism Holdings Ltd and another v Liversage and others 2004 (2) SA 478 (W) at 489HI).
Page 86 of [2004] 4 All SA 67 (C)
It is not the applicant's case that one (or more) of the developments that occurred after 31 July 1998, and of
which he was the author, satisfied the originality requirement of the Act and attracted copyright in its own right. It
is, therefore, strictly unnecessary to consider the third respondent's claim that he, and not the applicant, is the
holder of the copyright in the converter program that came into being after 31 July 1998. The applicant's case is
simply that he (applicant) is the holder of the copyright in the converter program as part of the Data Explorer
"package".
View Parallel Citation
However, I shall nonetheless indicate briefly what my views are as to the rival claims of the applicant and the
third respondent to the copyright in the work done after 31 July 1998. The applicant says that after 31 July 1998 he
employed the third respondent to do the programming for him and that as an employee, the third respondent has
no rights of any kind to the work he produced for the applicant. From the evidence it is apparent that whatever
their relationship was, it was not simply one of employment or of independent contracting. Both contributed to the
development of the program and both drew income from the proceeds of sales of the program. In 2000 it was given
out to clients that the third respondent was the "project leader" in respect of the development of the program and
that the applicant was responsible for sales information and client feedback. Much was made of the fact that there
was constant communication by email between applicant and the third respondent, while the latter was in the
United States, about aspects of the work the third respondent was doing. The contention was that the emails
show that the applicant was in overall control of the development of the program and that the third respondent
fulfilled his technical function as programmer at the behest and under the control of the applicant. Mr Acton
submitted that the role of the applicant at this stage was largely that of a "beta tester" whose function is described
as follows in Flyde Microsystems Limited v Key Radio Systems Limited [1998] EWHA Patents 340 (11 February, 1998)
at paragraph [25]:
"The fact that the programmer is saved time by reason of the beta tester's efforts does not mean that the latter is an
author. Although the beta tester may expend skill, time and effort on testing the software, it is not authorship skill. As Mr
Purvis put it, it can be likened to the skill of a proofreader. In all cases it is necessary to have regard to what the time
and skill was expended on. Here Mr Purvis says that Mr Barrett's efforts, although lengthy and valuable, did not save any
of Mr Seedle's time in respect of programming."
While the applicant expended effort as a beta tester on the development of the program after July 1998, his
interest went further. He was intimately involved in the development of the program. But from the moment in July
1998 when the applicant recruited the third respondent to join him in the further development of the software, the
development of the program was a joint effort between them. Their relationship ended in acrimony and there has
never been an attempt to resolve the issues between them. When their ways parted, the third respondent
retained a copy of the source code of the program that he had developed. In the circumstances, the applicant can,
in my view, claim no more than coauthorship in respect of the changes made to the software after July 1998.
Conclusion on copyright
The onus is on the applicant to prove ownership of the copyright that he claims. In the properties file of the Data
Explorer program, the holder of the copyright is given as "Softcopy". Section 26(1) of the Act provides
Page 87 of [2004] 4 All SA 67 (C)
"Where in the case of a . . . computer program a name purporting to be that of the author appeared on copies of the said
. . . program as published . . . in any
View Parallel Citation
proceedings brought by virtue of this Chapter be presumed, unless the contrary is proved, to be the author of the . . .
program."
The presumption in the section applies only to proof of authorship, not of ownership (LAWSA 2ed vol V part 2
paragraph 61). Section 21(1)(a) of the Act provides that the ownership of copyright conferred by section 3 shall vest
in the author of any work. As far as authorship is concerned, it is in my view clear from the totality of the evidence
that neither Softcopy nor the applicant was the author of the Data Explorer program. The applicant's claim to
ownership of the copyright in the program can, therefore, not be sustained.
Infringement