CONFIDENTIAL LML4801
October/November 2024
6
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Copyright in a computer program, as defined by the South African Copyright Act 1978 (Act
98 of 1978), typically lasts for the lifetime of the author plus 50 years after the end of the
calendar year in which the author dies. Since Jo is the sole author of the computer program
created for ABC (Pty) Ltd, the copyright will remain in effect for her lifetime and will expire
50 years after her death. In the event that Jo assigns her rights to ABC through a written
agreement, the company will become the owner of the copyright. 1
QUESTION 2
The ownership of copyright in a computer program developed by Jo for ABC (Pty) Ltd is
influenced by legal principles established under South African copyright law. According to
the Copyright Act 1978 (Act 98 of 1978), the initial owner of the copyright in a work is
typically the author, which, in this case, is Jo, the freelance computer programmer who
created the program. As the sole creator, Jo holds the moral and economic rights to her
work, including the right to reproduce, distribute, and publicly display the program. 2
If Jo was an employee of ABC at the time of creating the program, the default position
under South African law is that the employer (ABC) would own the copyright in works
created in the course of employment, unless there is a written agreement to the contrary. In
this scenario, ABC would likely be deemed the copyright owner due to the employment
relationship².
If Jo was an independent contractor rather than an employee, the situation becomes more
nuanced. Typically, independent contractors retain ownership of the copyright in their work
unless they explicitly assign their rights to the commissioning party (ABC). This assignment
usually requires a written agreement. Therefore, if Jo's contract with ABC included a clause
stating that any work produced would become the property of ABC, then ABC would likely
1
South African Copyright Act 98 of 1978.
2
Copyright Act 1978, Act 98 of 1978
, own the copyright. Conversely, if there is no such clause or if the contract is silent on this
issue, Jo would retain ownership of the copyright in the computer program she created³.
3. **Assignment of Rights:** In cases where there is a written agreement, the specifics of
the assignment are crucial. The contract should clearly articulate the transfer of rights,
specifying whether Jo is assigning all her copyright rights to ABC or if she is granting a
license to use the program. If the assignment is comprehensive and properly executed,
ABC would hold the copyright and possess all associated rights, including the ability to
make modifications, distribute, and license the program as needed⁴.
4. **Implied License:** In some circumstances, even without a formal assignment, an
implied license might arise based on the conduct of the parties or the nature of the work
performed. For example, if Jo developed the program specifically for ABC's use and ABC
has relied on that work, Jo might be seen as granting ABC an implicit license to use the
software, even if she retains copyright ownership. This would allow ABC to utilize the
program without infringing Jo's rights, but it would not grant them full ownership of the
copyright⁵.
In summary, the likely owner of the copyright in the computer program created by Jo
depends on the nature of her relationship with ABC (whether she was an employee or a
freelance contractor), the terms of any existing contract, and whether Jo has explicitly
assigned her rights. ABC should conduct a thorough review of any agreements made with
Jo and consider establishing clear contractual terms in future engagements to avoid
ambiguities regarding copyright ownership in commissioned works.
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### References
1. South African Copyright Act 98 of 1978. Available at:
[https://www.gov.za/documents/copyright-act](https://www.gov.za/documents/copyright-
act).
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