20 Nov Copyright infringement: The ins and outs
Michael is the supervisor of a group of computer programmers who are developing a certain computer program. They are all employees of Peach Software (Pty) Ltd. They plan to launch this new product on 14 January. The issue of the copyright, in this system, is in question.
The definition of an author depends on the type of work that is being spoken of. In terms of a computer program, the author will be the person who exercises control over the production thereof. Thus, both Michael and his team of computer programmers can be considered authors as:
- The programmers are effectively exercising control over putting together the program, and
- Michael is exercising control over them.
The general rule is that copyright vests in the author of a work for a period of 50 years, which starts at the end of the year that the computer program was made available to the public. After this period has elapsed, the public are free to use it without encumbrances. However, there are exceptions to this rule:
- If an employee of a newspaper, magazine or periodical creates an artistic or literary work during his employment, which is destined for publication, the copyright in that work vests in the employers.
- If an individual commissions a photograph, portrait, film or gravure, the copyright in the work will vest in the person who commissioned it once money for that commission has been paid.
If, for example, the team has a problem with developing a particular piece of the code for the computer programme, and Michael suggests copying the piece of code – which they are having problems with – from another programme that is copyright protected, the team will run into a number of problems. This is because of the following:
- A copyright owner has the exclusive right to perform any action – whatsoever – with the object that he owns the copyright in. He can – for example – sell it, destroy it or import it.
- In addition, the copyright owner can allow other people to perform the actions that he only he would be permitted to perform on the article and he is also permitted to prevent people from doing anything with this work. Thus, the owner of the copyright in XYZ 3000 is allowed to do anything with the product, authorise anyone to do anything with the product or prevent other people from doing anything with the product.
- Direct copyright infringement is someone doing something – to the copyrighted object – which only the copyright owner is allowed to do. The test for direct copyright infringement is two-fold:
– The first, objective step, is to determine whether or not there is an objective similarity between the copyrighted object and the object which is allegedly infringing the copyright.
– The second, subjective step, is to determine whether there is a causal connection between the copyrighted article and the article which is allegedly infringing the copyright.
- There are a number of defences that can be brought against the allegation of copyright infringement. One of these is the defence of fair dealing, which states that a portion of a work may be copied if it’s for the purpose of private study, research or review.
Thus, from the above, it can be seen that Michael will land up in a lot of trouble if he decides to follow his plan of merely copying part of the XYZ 3000 programme. However, if this computer programme was issued under a Creative Commons ShareAlike licence. (This states that the copyright holder cedes certain of his or her rights in order to allow the user more freedom to use the work in the manner he wants.
Thus, if the computer programme had been issued under such a licence, Michael would be allowed to copy the portion of the code that he wanted.