“SA Software Industry in Crisis”
The South African Supreme Court of Appeal in Bloemfontein decided to depart from years of international agreement on the rules governing ownership of software and make South Africa one of only two countries in the world where a person or company that developed a software application does not own it.
Before this ruling in the case of Haupt vs Brewers Marketing Intelligence (Pty) Ltd South Africa was in line with international law which stipulates that the software is protected as literary works and the owner of the software was the person who created the software.
With this new ruling the person who provided the specifications exercised control and it is now considered to be the property of this person.
The implications of this ruling are far-reaching and as Reinhardt Buys from Buys Incorporated, an IT law firm, noted the consequences are devastating and will effect foreign investment..
“No company or individual would want to invest in a country that violates international principles of ownership and related rights.”
“South Africa is now an unfriendly jurisdiction for the software industry, much like North Korea and Cuba. Local and international software companies are likely to leave and foreign investment will cease. Foreigners will be unwilling to license the use of their software applications to South Africans,” said Buys.
There are also untold implications for local developers who now no longer own the software they develop.
Buys holds that the ruling is incorrect for a number of reasons including the fact that the ruling confuses copyright and patent rights, confuses the difference between an employee and an independent contractor, fails to adhere to international law as well as failing to consider the local software industry.
Buys is calling for further action from the local software industry calling for a properly financed campaign to challenge this decision in court.
“Action must be taken before our software industry is plunged into the dark ages!” stated Buys.
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