Intellectual Property Law: The Protection of Software Intellectual Property

Intellectual property is a term used to describe something unique that is created by human intellect. Intellectual property rights are intangible assets that may be protected by various methods depending on their nature and type.

Intellectual property concerning software refers to computer code or software protected by law. Protecting your software via intellectual property rights is considered important as software innovation is valuable to individuals, start-ups and businesses. Plenty of time and resources are often spent on developing new software and one needs to treat this software as intellectual property to have more control over who can use it and how it gets to the public. Should individuals, start-ups and businesses not treat their software as intellectual property people may use it without their permission.
Software intellectual property may be protected in various ways including via copyright and/or a software patent both of which will be explained in more detail below.

Copyright is an unregistered intellectual property right in South Africa. It subsists automatically in specified categories of works as outlined and defined in the Copyright Act 98 of 1978. There is therefore no need to go through an application process to register it (unlike with patents). It protects the form and expression of an idea. There are nine specific types of works or classes of works defined in the Copyright Act in which copyright can subsist and computer programs are one of them.

It is often misunderstood that an idea can be protected by copyright, however, copyright protects the form of the original literary work and not the idea itself. This means that software copyrights protect the source code and object code used in the computer program or elements in the user interface. Basically, should someone come up with a unique code for software that functions in a particular way that code will automatically be protected under copyright law in South Africa. The question of who the author and owner of copyright in thea computer program and code will be discussed under our next article entitled “Who is the author and owner of a computer program (ito South African Copyright Law)?”.” It gives the owner of such copyright the exclusive right to copy, modify and distribute or sell those copies or modifications of the copyrighted work to the public.

Unlike copyright, a patent needs to be registered to provide intellectual property rights to a patentee. A patent is territorial in nature and accordingly, the exclusive rights afforded to a patentee are only applicable in the country in which a patent has been filed and granted, in accordance with the law of that country.

The South African Patents Act states that a patent may be granted for any new invention which involves an inventive step and which is capable of being applied/used in trade, industry or agriculture. This means that discoveries, scientific theories and mathematical equations are not patentable. The SA Patents Act further states: “Anything which consists of a program for a computer shall not be an invention for the purposes of the Act and this provision shall prevent, only to the extent to which a patent or an application for a patent relates to that thing as such, anything from being treated as an invention for the purposes of this Act.” In essence, this indicates that computer programs are also not patentable, however, this exclusion only applies to the extent that the patent relates to a software or a computer program, as such. An apparatus or system for using software and an apparatus or system used in software related inventions do not necessarily contravene the exclusion.

The boundaries of patentability of software and computer related inventions are yet to be determined in South Africa as the notion of patenting software has never been examined by our judicial system and there is consequently no clear indication of the interpretation the South African courts would have on this section of the Patents Act. It is customary for our South African courts to be influenced by rulings and laws in other countries. To this end, it is noteworthy that substantial similarities exist between our Patents Act and the British Patents Act (who also follows European Law). The European Patents Office has stated that software may be patentable if the applicant in question can demonstrate “further technical effect that goes beyond the normal technical interaction between the program (software) and computer (hardware).”

One has to ask whether the invention makes a “technical contribution” to what is already known in the industry or whether the invention solves a “technical problem” in a non-obvious way to test and determine if such an invention is patentable. This test and area of the law is rather complex and it is advised that potential patentees in search of protecting such inventions should seek legal advice from an intellectual property expert before incurring costs for any patent application.

As can be seen from the above, granting software related patent applications remain a rather controversial topic. While free software and open-source code are intended to open and encourage competition, patents are anti-competitive in nature. Large software patent portfolios are frequently registered in developing countries by giant multinational software companies, such as Microsoft, which arguably destroys competition from resident software product developers. On the other hand, it is also often argued that these contentious software patents are the basis on which local software companies can enter the global market and potentially compete with giant multinational software companies. Registration of these patents provides start-up companies with the traction to build their businesses as real competitors within the international arena and provide a platform to enter the playing field in which the giant multinational software companies dominate.

Should smaller resident software companies refrain from patenting their software inventions in South Africa, they will be leaving the playing field wide open for giant multinational companies to obtain a monopoly and dominate the software arena. As we await a relevant South African court decision on the topic, smaller resident software companies are encouraged to seek expert legal advice in registering their software related inventions from an intellectual property expert. A valid South African patent granted to a resident software company will allow them to enforce their rights against giant multinational software companies in South Africa and allow the resident software company to be placed on better footing with multinational companies.

Written by Claire Gibson

For any assistance or guidance please contact Claire Gibson at cgibson@dkvg.co.za or Gerrie van Gaalen at gvgaalen@dkvg.co.za.

This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.