Monday, 16 July 2018

Copyright: the basics for small business owners and app developers

I’m regularly asked by developers and small business owners – who owns the copyright in my new app? The answer, as with most legal questions is: ‘it depends’. South Africa’s Supreme Court of Appeal in 2008 noted that copyright cases relating to computer programs are notoriously difficult.  

In South Africa, copyright is regulated by the Copyright Act 98 of 1978. In order for copyright law to protect an app, it must meet a few basic requirements.   The app must:

1) be original

2) take some material form (no copyright protection for ideas or concepts); 

3) be created by a qualified author (this means the creator of the app, if an individual, is a South African citizen or is domiciled or resident in South Africa).

Importantly, copyright vests automatically and no formalities exist – therefore, there is no copyright registration for the creation of a new app.   

Remember: authorship of work that enjoys copyright, and ownership of work that enjoys copyright are two separate considerations.  Who is the author?  Usually, the person who created the work (developed or created the app).  South Africa uses the terminology ‘exercised control’ over the creation of the app – in simple terms, this is typically the person who developed or created it.

Who is the owner? Generally, the owner of the copyright is the author of the work – but not always, particularly where an employee creates an app during the course of his or her employment, or where an app developer is commissioned to develop an app and assigns the copyright in writing to the person who paid for its development (a standard term in a contract of this nature).

From the perspective of an app developer, it is important to ensure that you consider whether it is fair in the circumstances to assign the copyright to the person paying for the development.  Is the payment enough? From the perspective of a person commissioning an app or any development – crucially – you must sign an agreement with the developer whereby you specifically agree to pass ownership of the copyright, or ownership will remain with the author. 

In addition, if the work created does not qualify as a computer program – for example, the look and feel of a certain app, or code created that may not qualify as a complete app, that work may still be protected as a literary work or an artistic work.  

Ultimately, with a business on the line, or a potentially valuable copyright to protect, it is in the interests of both parties to carefully consider copyright ownership, agree on a fair, mutually satisfactory position, and then record this in written, clear agreement.