Software. . . Copyright v Patent
By Tracy Reiff

The development of software is a major business asset and it is imperative that one protects one's software in order to prevent oth­ers from using and/or copying it and thus making a financial return from it.

Intellectual property is that area of law that protects creations such as works of art, books and computer programs. Intellectual prop­erty law tries to balance the interest society has in the free flow of information and the interests of the person who produces the ideas and information and it is this law that we look at to assess the protection of computer software.

Copyright protection is the most effective way to-protect software in South Africa as no registration is required. The South African Copyright Act 98 of 1978 applies to literary, musical and artistic works and to sound recordings, cinematograph films, sound and television broadcasts, published editions and computer programs. The Act gives the holder the exclusive right to make copies of a work and to prevent others from making copies. It is not necessary to register the work and any right in terms of the Act automatically enjoys protection.

It is clear, however, that the trend in allowing software to be patented is becoming stronger worldwide and thus one should also investigate the patentability of one's software before they are made available to the public.

The South African Patents Act of 1978 ("the Act") does not define an invention, but says that a patent may be granted for an inven­tion which involves an inventive step and which is capable of being used or applied to industry or agriculture (s25(1) of the Patents Act 57 of 1978). Certain inventions are excluded from patentability; they are a discovery, a scientific or mathematical method, a literary, dramatic, musical or artistic work or any other aesthetic scheme, rule or method for performing a mental act, playing a game or doing business and specifically a program for a computer (s25(2». One must qualify this by saying that an inven­tion incorporating one or more of these items as a feature of the invention, may still be patentable.

Section 25(2)(f) of the Act states:
"Anything which consists of ...a program for a computer... shall not be an invention for the purpose of this Act".

Subsection (3) qualifies subsection (2) by making it clear that it is only a computer program 'as such' which is prevented from being treated as an invention, and is therefore not patentable. The exclu­sion does not extend to the methods or processes carried out by the software, nor software in combination with hardware. The Act does not explain what a computer program 'as such' is nor does the Act define 'computer program'.

As stated above, the Copyright Act of 1978 offers protection for computer programs and provides the following definition: 'computer program' means a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a com­puter, directs its operation to bring about a result.

In other words, according to the definition, a computer program comprises a set of instructions which is fixed or stored in some way, for example, on a floppy disc. Clearly then, a disc on which a computer program is stored cannot be the subject of patent pro­tection. But is there not more to computer software than a mere list or file of coded instructions stored on a disc or chip, or printed on paper?

It has been said that computer software may be thought of as a set of instructions which are designed to control the operation of a com­puter or a computerised machine or system in a desired way, by interpreting and responding to various inputs and by then controlling the operation of the computer or machine accordingly, effectively following "rules" or a logic structure embodied in the software.

What actually occurs in practice is that instead of trying to patent the actual program, one looks at what the program is used for. Does it effectively cause a computer to carry out a method or procedure which is new and inventive, or does it perhaps result in a comput­erised machine which is able to carry out certain unique functions? If so, it is the method or the machine which one can attempt to patent, just like any other patentable invention.

Although there is no guiding precedent, a South African patent application does not involve substantive examination but does involve formal examination to ensure that all documentary require­ments are satisfied and thus no software patent applications to date have been rejected.

We would suggest that one needs copyright and patent protection, as copyright generally only protects the expression of an idea and does not stop someone from appropriating clever ideas that are embodied in the work, while a patent can sometimes stop some­one from looking at a copyright work, extracting the idea and cre­ating a new system. In a nutshell, if there are clever ideas in your software and you wish to protect those ideas, you will have to patent your software. Also, a patent protects one who subse­quently invents, not just against copiers. In litigation it is also hard to show copying in the case of copyright, while it is unnecessary to show this in patent litigation.