View Parallel Citation
must be treated with circumspection and must at all times be carefully evaluated within the context of all the
circumstances.
The third respondent is an expert computer programmer. He is a softspoken man who takes obvious pride in his
work. Although he feels himself "done in" by the applicant, he did not allow his animosity to colour his evidence. He
was fair, gave credit where credit was due and was prepared to make concessions. He did make mistakes and was
sometimes wrong. When it comes to development work on the program, and the state of the program at various
stages, I have no hesitation in accepting his evidence.
Bento, also an expert computer programmer, has been in the employ of the company since 2001. He gave his
evidence, which was not seriously disputed, in a straightforward and matteroffact way. He was in all respects a
reliable witness on the matters on which he testified.
Copyright in computer programs the law
The Copyright Act 98 of 1978 ("the Act") differentiates between computer programs and databases. The Act applies
different criteria for their protection and defines authorship differently in respect of them.
Page 77 of [2004] 4 All SA 67 (C)
Computer programs
Computer programs were previously protected as literary works (Northern Office Micro Computers (Pty) Ltd v
Rosenstein 1981 (4) SA 123 (C)). The Act, as amended by the Copyright Amendment Act 125 of 1992, has since
1992 recognised computer programs as a specific and sui generis form of expression which can be the subject of
copyright. In section 1(1) of the Act, a computer program is defined as
"a set of instructions fixed or stored in any manner which, when used directly or indirectly in a computer, directs its
operations to bring about a result."
The protection lies in the set of instructions. Both Dean Handbook of South African Copyright Law 114 (hereafter
referred to as Dean Handbook) and Van der Merwe Computers and the Law (2ed) at 8687 submit that the definition
of "computer program" in the Act is limited and refers only to the finished product in the form of the program's
source code and object code.
The source code of a computer program is a textual description of the program, written in a programming
language. The source code is not directly executable by a computer, and must first be converted into an object code
which is "machine readable", either by passing it through a compiler or loading it into an interpreter that translates
and executes it one statement at a time. Thus, in the sense employed by the definition in section 1(1) of the Act, a
program in object code "directly" directs the operations of a computer to bring about a result. A program in source
code does so "indirectly" after conversion into an object code which is machine readable.
The definition does not cover other elements of a program, such as the preliminary stages embodied in
specification sheets and flow charts. These are not protected in the same form as the program itself and will still
have to be protected as "literary works" (Pistorius and Visser "The
View Parallel Citation
Copyright Amendment Act 125 of 1992 and Computer Programs: A Preliminary Overview" (1992) 4 SA Merc LJ 346 at
348, 349350; Van der Merwe "Copyright and Computers, with special reference to the Internet" 1998 (115) SALJ
180 at 191).
There seems to be uncertainty about the copyright protection of screen displays. Van der Merwe suggests that it
"is probable" that they "may not be protected in the same form as the program itself" (Van der Merwe "Copyright
and Computers, with special reference to the Internet" 1998 (115) SALJ 180 at 191).
In Pastel Software (Pty) Ltd v Pink Software (Pty) Ltd and another 399 JOC (T) (which decided was prior to the
amendment of the Act by the Copyright Amendment Act 125 of 1992) it was held that a screen layout may be the
subject of copyright. The case was decided on the basis of the documentation in the form of flowchart and planning
diagrams which underpinned the screen layouts. These were held to be copyrightable, and therefore what
appeared on the screen of the program was a mere translation of such written documents and was protectable on
that basis.
The computer program and code which underlie the screen layout may be the subject of copyright as such.
Similarity in screen layout does not necessarily arise from similarity of underlying code. In Lotus Development Corp v
Borland International Inc, 49 F 3d 807 (1st Cir 1995) the question arose whether the Lotus 123 computer
spreadsheet program was infringed by Borland who
Page 78 of [2004] 4 All SA 67 (C)
copied the Lotus 123 menu hierarchy into its own computer spreadsheet programs. In paragraph [40] of the
judgment it is said: