Computer Programs Copyright Protection in South Africa

Computer Programs Copyright Protection in South Africa

INTRODUCTION

This paper gives a modest contribution to the issue of computer programs copyright and its protection under South African law. It uses as a case study the decision of the Supreme Court of Appeal in Haupt T/A Soft Copy v Brewers Marketing Intelligence (Pty) Ltd and Others 2006 (4) SA 458 (SCA) (the Haupt's case). What is the implication of this decision for South Africa in terms of copyright protection? Is South African copyright protection of software too soft? What consequences this decision can entail as far as software industry is concerned in South Africa? Can it scare off potential investors?

Here are some of the issues the paper is looking at. The paper is divided into three sections. The first section will give a brief view of the case, the second will deal with the concept and regulation of copyrights, finally the third will address the discussion of the case. The paper will end up with a conclusion.

1. FACTS OF THE CASE

Haupt, the appellant, applied to the Cape High Court for an order interdicting the respondents in terms of the Copyright Act of 1978 from infringing his alleged copyright in some computer programs. The High Court held that Haupt's claim could not be sustained and dismissed the application. The decision of the Cape High Court was reversed by the Supreme Court of Appeal which set an order interdicting the respondents from infringing the appellant's copyright in the computer programs.

2. ISSUE OF COPYRIGHTS

2.1 Concept of Copyrights

2.1.1 Definition

Copyrights are referred to as rights to ensure protection of information from duplication and distribution. They are a subset of intellectual property rights that aim to create a balance between the rights of an individual against those of the public by conferring the author or creator of a work the exclusive right to control and profit of his work.

2.1.2 Infringement of Copyright

The most relevant infringing activities to computer programs involve "copying", "adapting" and publicly distributing the work. In each case the activity can be in relation to the whole of the work or a substantial part of it.

2.2 Regulation

Before dealing with the regulation of computer programs copyright in South Africa, regard must be had to the way this question has been addressed in other jurisdictions and internationally, since this matter has a high international scope.

2.2.1 World Intellectual Property Organization (WIPO)

Computer programs are protected as literary works within the meaning of article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or the form of their expression (article 4).

The Berne Convention provides that copyright vests in the author of a work (article3).

As illustrated below the approach taken by the WIPO is the general position throughout the world.

2.2.2 Australia

In terms of section 10(1) the Australian Copyright Act of 1968, computer programs are protected as literary works.

2.2.3 United Kingdom

Like in Australia, "literary work" has been extended in the UK Copyright (Computer Programs) Regulations 1992 to include preparatory design material for a computer program.

2.2.4 The European Union

The EU Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs requires that computer programs and associated design materials be protected under copyright as literary works within the sense of the Berne Convention.

2.2.5 Japan

Japan is one of the rare industrialized countries where computer programs are not protected as literary works. The Japanese Copyright Act 48 of 1970 under articles 21 and 27 grants the author of a computer program the exclusive right to reproduce and adapt his work.

2.2.6 South Africa

Copyrights are regulated in South Africa by the Copyright Act 98 of 1978. This Act provides copyright protection for a wide variety of works, such as literary works, musical works, artistic works, computer programs, etc. and states as a general rule that copyright vests in the person who creates the relevant work. Nevertheless since the amendment of 1992, computer programs gained a special status in terms of which the copyright vests in the person who exercised control over the making of the computer program, rather than the programmer who created the work.

Now that the legal framework of copyright has been set, we can discuss the decision of the Haupt's case accordingly.

3 DISCUSSION OF THE HAUPT'S CASE

3.1 Establishment of the infringement

As pointed out above this is a case of an alleged infringement of copyright in computer programs.

First, for infringement of copyright to be established, it is submitted that a plaintiff must satisfy two tests:

- a causal connection between the alleged infringement and the copyright work;

- there must be objective similarity

In the case at issue, the infringement is clearly established since these two tests are satisfied, indeed there is a causal connection between the copyright work and the infringement because some portions of the work have been copied, creating therefore an objective similarity.

Nevertheless, the question that can come to one's mind is how come the program was created by the first respondent and it is the appellant who is considered as the author while there was no employment contract. It is simply because according to the Copyright Amendment Act of 1992, the copyright of computer programs vests not in the programmer who created the program but in the person who exercised the control over the making of the program, which is here the appellant.

No doubt that this decision is consistent with the Copyright Act. But is the approach taken by the Act the most suitable for the protection of copyrights in South Africa?

3.2 Suitability of computer programs copyright protection in South Africa

As noted above, South Africa has taken a position utterly different from most of foreign jurisdictions and the WIPO as well in the issue of computer programs copyright. Indeed, since 1992 computer programs are no longer protected as literary works with the implication that the copyright in the former programs has shifted from the creator of the work to the person exercising control over the making of the program.

What is the rationale of this approach when one knows that copyright is a legal means to encourage and protect human creativity and innovation?

It seems to me a peculiar position, since it takes away all the rationale of copyrights. Roos ("Rabble Rousing for Cyber Heads: Development in South Africa's IP law and international investment concerns" (No 82/2006), CIPS), on the other hand, contends that the fact that the copyright is shifted from the real creator to the person who exercises control over the making of the program does not really matter since the copyright still exists.

I definitely do not share this position, my personal opinion is that: to award copyright to the wrong person is nothing else that negation of copyright.

But where I agree with Roos is when he states that this decision will not scare off potential investors, since the investors have after all a coinciding interest with the party in which favour the court found.

So, as far as I am concerned, what I can say is that the rationale followed by the legislature in passing the Copyright Amendment Act of 1992 is more economic than copyright oriented. Indeed it strengthens the position of parties already strong by giving them more power and does not really protect nor encourage human creativity by defending the works of the mind.

Is this difference between South Africa and other jurisdictions and international bodies merely superficial?

3.3 South African approach contra international approach

As mentioned by Roos, the mere difference between the South African and the international handling of a computer program should not be confused with the prospect of less protection. Nevertheless does not the difference in this instance amount to discrepancy?

Roos contends that there is no discrepancy since South Africa protects the copyright in computer programs. He contends that the difference is merely superficial.

I do not agree with Roos on this point, I am of the view that the difference is substantial. Indeed, as we have seen in the second section, the WCT protects computer programs as literary works while South Africa protects computer programs as a category of its own. The copyright vests in the creator of the work in terms of the WCT while in South Africa, the copyright vests in the person exercising control over the making of the computer program. That makes all the difference, which definitely amounts to discrepancy.

How can programmers protect themselves against the flaws of the legislation?

3.4 Contractual clauses

It is fortunate that programmers have still a way to protect their copyrights in the computer programs they are creating through contractual clauses stipulating that the copyright vests in them. Indeed, as submitted by Roos, "most programmers with an interest in retaining the copyright should reasonably negotiate that the copyright vests in them". But are programmers really in a position to negotiate any copyright clause favouring them with parties far more powerful than they are? Therefore the efficiency of these clauses in protecting the programmers' rights is still to be seen.

CONCLUSION

There is no doubt that the decision of the Supreme Court of Appeal in the Haupt's case is in compliance with the Copyright Act, so the decision in se is not a bad one but the problem is to be found in the legislation that has made possible this decision. The legislation, as noted in this paper, has taken a wrong approach in protecting the copyright in computer programs that needs to be fixed despite the fact that this is unlikely to scare off potential investors. Thus, in making a final decision on the copyright of computer programs, it is essential that South Africa consider the international situation and adapts its laws accordingly. A purely domestic solution is unlikely to be successful since the multimedia era requires consistency across the legal systems of the world.

Getting An International Law Job - 10 Mistakes That Can Cost You A Legal Job Abroad

Getting An International Law Job - 10 Mistakes That Can Cost You A Legal Job Abroad

While every country has its own quirks when it comes to recruiting for law jobs there are some things that are the same the world over. There are lots of traps to fall into that could prevent you from getting that international law job you have always dreamed of.

CV Lacks Focus - You have to think of your CV like an advert, it's selling you as a candidate to you potential employer abroad so it's important it's got a clear focus. Decide exactly what you would like the reader to come away from your CV thinking. You can then focus every element of your CV towards this aim. Don't include anything unnecessary and keep the document brief.

CV Hides Key Skills - If you are applying for a legal job your relevant qualifications & experience is hugely important. Don't hide them away at the end of your document. It's a sad truth but often recruiters don't read CVs in that much depth and often lose interest before the end. Don't let important information get lost at the end of your CV.

Over Used Template - Nearly everyone uses Microsoft Word and lots of people use Google. So imagine how many people use the templates that are easy to find. In a competitive job market, like law, there can often be a large number of applicants for a position; anything you can do to help your CV stand out can help your prospects of getting a legal job abroad.

Application Not Addressed to Correct Person - It's easy to make a mistake when you are sending out lots of job applications especially if you are planning on relocating to another country. However addressing your CV to the wrong person could instantly ruin your chances. The obvious solution might seem to be to send your applications to a generic "Dear Sir" If they have included a name on the advert such a tactic is likely to seem impolite and suggest you don't have a huge desire to get the job.

Typos and Bad Grammar - Probably the most repeated tip when it comes to CVs and covering letters but Typos and Grammar mistakes can be really costly. Double & triple check it. It is always worth getting at least one other person to give it a quick proof read a fresh set of eyes will spot mistakes you never would have seen.

Untailored Cover Letter - There's nothing wrong with sending out a generic CV, there are definite benefits to tailoring the document to each job but it's not essential. On the other hand you must tweak your cover letting for each individual job application you make. Show why you would be the perfect candidate specifically for the job advertised. Use the same phrasing as they have used and you could be on the way to a great international law job.

Talking Too Much - It's always risky in a job interview that you can end up talking too much. Answer the question briefly giving an extended answer can seem like a good idea but it's easy to end up rambling and create a bad impression.

Negative About Previous Jobs - The chances are you are leaving your job you are unhappy there, especially if you are thinking about moving abroad. However it won't help you get a new job by dwelling on the reasons you are leaving your old one. It will make you seem negative person and less attractive as a potential employer.

Asking About Salaries Too Early - Much like a shop wouldn't ask to see your credit card before letting you through the door you shouldn't jump the gun when it comes to salary negotiation. That can wait till they offer you the job, any earlier and you'll just end seeming arrogant hardly an attractive quality in legal professional.

Not Enough Eye Contact - The importance of body language cannot be underestimated many people can get hung up on what they say in an interview when how they are sitting and how they and the tone of their voice. One of the easiest ways to improve your body language is too make more eye contact. It's easily done and can have great positive effects.

If you are thinking of applying for a legal job abroad avoiding these mistakes could make your search for a new career that much easier.

How to Take a Girl's Virginity - A Guide for Guys

How to Take a Girl's Virginity - A Guide for Guys

It is not easy to take a girl's virginity. It is a very sensitive issue and a lot of guys can get embarrassed about. You want to take a girl's virginity in a way that makes her feel very comfortable. She is naturally nervous about her first time, but you can give her an unforgettable experience. If you are reading this, you are a boyfriend, or that special boy in her life. Naturally you want to make sure that your partner will feel comfortable when you have sex with her for "her first time." You are a person that is sensitive to her and is a caring person who wants her to remember this first time in a positive light. With good intentions, you will find it very easy to be sensitive to her needs and make her first time something that she will never forget. She'll never forget her first time, so make the most of it.

First, be sure that your girl is someone you sincerely care about. You wouldn't want her first time to be something disappointing for either of you, and if you don't really care about her, she'll feel it and won't be fully comfortable giving her virginity to you. Another thing some guys forget about is making sure that the two of you are both of legal age to give consent to having sex. It's not something you want to have on your mind while making love to her, but it should be taken into consideration for both your sakes.

Be sure that you are ready to have sex at any time, don't forget to keep a condom on your person. While many girls like to plan out their first time have sex, it usually ends up happening spontaneously which can be the best way to have a really romantic and intimate moment.

Don't neglect the environment.

Just because the back seat of a car is a popular place for a first time doesn't mean that it's a good one. You don't want her uncomfortable with not being able to move into the right position or worried about getting caught. You want her somewhere where she can feel safe and comfortable with you.

She'll naturally be nervous. This is OK. A little alcohol can do wonders to sooth nerves, however neither of you should be drunk for her first time. That leads to awkward sex.

When you have everything ready for sex, condoms, a comfortable environment where you won't be disturbed, put on some music and set the mood.

Start off with a lot of foreplay, you want her so turned on that being nervous doesn't cross her mind. You shouldn't even think about penetration until she's dripping wet and dying to have sex with you. Make sure she's lubricated enough and if not, use some lube.

Enter her slowly, the first penetration will hurt, but if you do it slowly and gently, it won't hurt her much. Be sensitive to her, make sure that she knows she can ask you to slow down or stop if it start to hurt, she won't need you to, but she might be worried about having to ask. Tell her beforehand so that she doesn't have to think about anything but feeling good. Once she's used to the feeling of you inside her, you can start with slow shallow thrusts, staying gentle and letting her choose how fast you go. As she starts to feel more comfortable, she'll be asking for it harder, faster, and deeper in no time.

That's about all there is to it. If she's feeling a lot of pain, have her get on top of you so that she can control the exact speed and depth, eventually she'll find the rhythm that gives her the most pleasure and the least pain.

Follow these tips and you will be remembered as a sensitive and caring man who made her first time something unforgettable.

Computer Worm - What is Computer Worm and How to Safe-Guard Your System

Computer Worm - What is Computer Worm and How to Safe-Guard Your System

If you have been using a computer for some time now, then you probably have heard about a computer worm. This is a type of "malware" or malware software. These worms have been around for a while now. A computer worm is like a virus because it will attach itself to a file, but unlike a virus, a worm is able to self-replicate and spread through your computer without any help from you. It will not only spread through all of your computer files, but it will also spread through your email too.

It is important to understand that the longer worm places is in your computer, the more disruptions and damage it will be able to do therein. If you purchase anti virus software, you will also be able to protect yourself from a computer worm. While you will get a lot of protection from these anti virus programs, they are not able to provide you with complete protection.

For this reason you will also need to have a good fire wall in place. Then you will be able to keep criminals from getting into your computer in the first place. If you want to get the best protection though you will need to get a computer software protection suite. Of course, even then you are going to make sure that you have the latest updates available in order for you to be really safe.

So, why would anyone want to create such a thing? First of all, it is because these worms are able to bring down systems and networks since they are able to consume a lot of bandwidth and memory. Secondly, it will also be able to tunnel into your system. Once they are able to make their way into your email address book the worm can then be sent to everyone therein.

Keeping above information in view it is important to protect your system and data from dangerous computer worms. Absolutely important to have security software in place and have regular security updates installed on your system. The regular security update will help in stopping worms in penetrating in your system. Having closed the gaps around your system, next thing is being knowledgeable about latest worms and latest security updates available to counter them. The more you are pro-active in defending your system and data, the more you will have less chances of getting attacked by computer worm. Avoid opening unexpected mails, especially with attachments.

By opening these attachments you may be directed to suspected web links, which will enable them to download malicious programs on your system or capture your email contacts. They can also spread worm through your email contact address book. Stakes are high; keep your security plan robust. Starting with good security software, firewall followed by daily security updates. Keep regular backup of your system and avoid going to web sites, which give free stuff. Most of the time these sites will package spyware or adware along with free software. Use filtering tools in your email system to filter spam mails.

There is nothing called hundred percent protection from virus and worms, by applying above procedures you can minimize chances of worm attack on your system.

Differences Between PPC, PPV, CPV, CPA, PPA

Differences Between PPC, PPV, CPV, CPA, PPA

PPC, PPV, CPV, CPA and PPA are various advertising means used in online marketing. They are used to drive traffic websites, landing pages or any online platform that could be used for business purposes.

Before we go into the differences, it is a good idea to know their definitions. Knowing what they mean and their characteristics will clearly point out major differences among them. Here are the abbreviations in full:

PPC - Pay per Click

PPV - Pay per View

CPV - Cost per View

CPA - Cost per Action

PPA - Pay per Action

By plainly looking at the abbreviations, I bet any layman would distinguish between them. Anyway, let's get going.

PPC - Pay per Click

1. This is a way of advertising in which ads placed on websites or various online platforms are only charged when someone clicks on the ad.

2. If someone views the ad but does not click, there is no charge imposed

3. It is a good way of driving targeted traffic to a website and highly recommended in online ads.

4. Its prices range from as low as $0.01 per click to as high as $14.00 per click. This depends on various factors: competition, amount of traffic the ad would probably attract, among others.

5. One therefore needs to be careful in using this ad since it can easily drain your account overnight.

6. If you were to use it, I would recommend you use it to drive traffic to squeeze pages to collect emails for e-mail marketing.

7. Examples of these ads are the ads seen on"ads by Google" on various websites.

PPV - Pay per View & CPV - Cost per View

8. Both PPV and CPV mean the same thing; it is the amount one would be charged for any view to an ad regardless of any click made on it or not.

9. It is normally charged in groups of views, e.g. $0.30 per 1000 views and so on.

10. It would therefore prove to be quite cheap and effective if you were to get targeted traffic from it.

11. It can however be very expensive if your ad would have many views but less action.

12. Such ads there need to be very catchy and attract the required action in order to derive value from it.

13. A Facebook ad provides a good example of both PPC and PPV ads. I would recommend you take a look to see the difference.

CPA - Cost per Action and PPA - Pay Per Action

14. Both CPA and PPA mean the same thing. It is the amount charged or paid for every intended action done successfully. For instance joining an online program, filling a form, etc.

15. I find it similar to affiliate marketing only that the later is broader compared to CPA. Secondly, CPA targets long-term business relationships while affiliate marketing might not.

16. PPA is very costly compared to the others in this article but attracts great business value wherever it is involved.

17. In this type of ad, an action must be completed as required in order to be charged or paid.

Finding Work at Home Computer Jobs

Finding Work at Home Computer Jobs

You and I are simply lucky. Why? There's been an explosion of new opportunities for people seeking work at home computer jobs. In fact, the number of employers offering these opportunities is growing steadily almost every month. If you are passionate about turning your back on office drama, and want to pitch your telecommuting tent in your living room, lucky you because opportunities abound!

Not that long ago, work at home computer jobs were tough to find. Now, an increasing number of Fortune 500 and Fortune 1000 companies regard telecommuting as an important factor in accomplishing business goals and objectives, and company financial success.

Have you been thinking about making the virtual employment switch?

Here are a couple of virtual employers to consider:

The CMI Group. Established in 1985, and headquartered in Carrollton, Texas, the CMI Group is an industry leader in the telecommunications, cable TV and healthcare collections arena, providing companies with collections and call center services. The CMI Group offers opportunities as agents in customer service collections. They expect virtual workers to own their own computers, to be computer and Internet savvy, and to type information with minimum errors.

When speaking with customers, agents must be firm, but fair in performing their duties. If you are interested in CMI, you'll need to attend a three-week, on-site training program in Carrollton, TX. The company offers a base pay of $9.00 per hour. If you're interested in telecommuting, CMI would be a great choice.

Sykes Enterprises, Inc. Founded in 1977 and headquartered in Tampa, Florida, Sykes provides business process outsourcing, and customer contact center services on a global basis. Its clients include businesses operating in a variety of industry sectors, including transportation, healthcare, leisure, communications, financial services and technology. Sykes Enterprises offers positions as customer service agents.

The company looks for people who want to make a difference in the lives of others. They feel that their agents impact the lives of their customers by solving problems, and making things right. They expect agents to own their own computer, and be proficient in computer use. The hourly pay rate depends on your qualifications, but you can expect somewhere between $9 and $12 per hour.

Customer service agent positions are just one of many work at home computer jobs available for those seeking the work at home lifestyle. Are you able to work by yourself? Are you self-motivated? Has working at home been your heart's desire? Then you need to explore the endless opportunities available to you.

Financial Security & Early Retirement

Financial Security & Early Retirement

Most people like to believe that they will be able to retire years before they reach full retirement age. Although this is a nice thought, it's not very realistic unless you commit to solid planning early on.

One of the first things you should decide is at what age you would like to retire. The second thing you'll need to know is how much financial security you expect to have. A good financial planner can help you estimate how much you'll need to retire at your target age.

With this number, you can now begin crafting a savings and investment plan. Keep in mind that this is only an estimate and also that with an early retirement, you'll have to plan to live longer off your nest egg.

Once again, a financial advisor can help you determine the best way to invest your money in order to achieve your retirement goals. In most cases you will find that if you save and invest wisely, you can have a secure financial future that will extend beyond retirement.

But what if the prognosis is not good? What if you are not able to reach your savings goal by your target age?

There are a couple of alternatives. First, look at how close you are to your goal? Would a few more years make a difference? If so, then maybe you still retire early, just not as early as you had originally planned.

If your retirement fund would carry you through retirement but for a small gap each month, then consider working part-time instead. Maybe this is when you get that job as a travel agent or go to work as a substitute teacher. Working part-time gives you some flexibility to choose a career because you find it rewarding, not because it pays the bills.

Also remember that you can continue to save after you're retired. This, combined with a part-time job might be all it takes to make that early retirement dream a reality.