Do you even code, bro? – Ownership of computer programs

computer program
18 Mar 2020

It is a beautiful Monday morning and you are on your way to work. You stop at your local coffee shop for your caffeine fix and witness the barista struggling to move a 2kg bag of medium roasted Brazilian coffee beans. Without hesitating you ask the barista: “do you even lift bro?”, referring to his apparent lack of muscular strength. Customers in the shop have a great laugh, the barista is disgusted and off to work you go.

However, in today’s day and age, we no longer need to lift bro as we simply need to code bro. We can write code to instruct an artificial barista to prepare the perfect cup of bliss whilst simultaneously shifting around great amounts of coffee beans. The opportunities are endless and creating software, that is, coding), is becoming a more and more valuable skill to have. So much so that grade 1 school kids are even being taught coding it as part of their curriculum. Not being able to operate basic computer tasks will lead to “do you even code bro” comments (and rightfully so).

If you are a bro that codes, you are a creator of intellectual property (“IP”) as source code is eligible for copyright protection in South Africa. Therefore, if you write source code or bro code, seeing that you are a bro that codes, you may want to ask the following questions:

Is my bro code protected?

Your bro code needs to fall within the South African Copyright Act’s definition of a “computer program” to enjoy copyright protection which is “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”. As such, any source code you write will be afforded copyright protection.

Do I need to register the copyright?

Copyright automatically subsists as soon as the work has been created and no formal registration process is required.

What does copyright protection offer?

If you are the owner of the copyright in relation to the computer program, only you can do or authorise the doing of certain acts in South Africa including but not limited to copying the computer program, creating a version of the program in a different programming language, broadcasting and/or publishing the computer program.

Do I own my bro code?

According to the Act, the “author” of the code is the owner of the code and the “author” is defined as “the person who exercised control over the making of the computer program”. However, “control” is not defined by the Act and ownership needs to be dealt with on a case by case basis.

With the above being said, ownership is a tricky question and it’s best to explain your position by using different scenarios:

You are employed, under a contract of service, as a computer programmer at a coffee company. Your employer instructs you to write new code to enable online orders and you do a sterling job. This code, even you worked on it for months, belongs to your employer as the code was created under your contract of service during the course of your employment (i.e. you were simply doing your job).

Same scenario, however, you write new code, after work, specifically relating to the automotive industry. This begs the question of whether the code was created in the course of your employment which leaves ownership arguable. The fact that there is no close relationship between the code you created and your employment (i.e. automotive industry vs. coffee industry) is something that our courts will consider in determining ownership.

You are a freelance computer programmer and a coffee company commissions you to create a new program that automatically cleans all their coffee machines. You start to do the necessary and realise that it is going to be a masterpiece. In this regard there is no contract of service (this is simply a once-off contract) and the code was not developed within the scope of your employment. Now it needs to be determined whether you are the author of the code, and there in terms of the Act, the owner of the code.

As mentioned earlier, the “author” is the person who exercised control over the development of the code. If the coffee company does not steer the direction of the development of the code (steering the direction of development doesn’t mean it needs to be computer savvy) or not authorised to terminate the further development of the code, then you will be the author of the copyright vested in such code (i.e. the owner in terms of the Act).

You wrote bro code to the highest of bro standards (you exercised full control) and sold it to one of your other bros. You sold it so your bro is now the owner of the bro code, right? Nope. Even if your bro overpaid you, copyright can only be assigned by means of a written copyright assignment agreement.

Ownership, with regard to computer programs, is tricky and needs to be duly investigated. As such, if you are a coding bro, you are about to hire a computer programmer for a project or two or simply need advice with regard to copyright vested in computer programs, be sure to contact a professional.

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Ruan Dickinson

Ruan Dickinson is an attorney in KISCH IP's Trade Mark Department. He specialises in trade mark prosecution, queries and administration. Read more about Ruan Dickinson


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