n Stellenbosch Law Review = Stellenbosch Regstydskrif - Equitable intellectual property protection of computer programs in South Africa : some proposals for reform

Volume 23, Issue 3
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



This paper examines the intellectual property ("IP") protection of computer programs. It considers how South Africa can achieve an equitable balance between creators' interests in securing remuneration and attribution for, and users' interests in securing affordable access to, these programs.

The criterion used for determining equity is whether legal certainty has been achieved with regard to the nature and scope of protection; whether the protection is compatible with the nature of computer programs, programmers' needs and practices, and whether, ultimately, the protection enables user access to affordable computer programs. The paper finds that existing IP protection is inequitable due to its anti-competitive, and innovation-chilling effects, which hinder creative efforts and, consequently, thwart access to affordable computer programs. These negative effects are primarily due to legal uncertainties, incompatibilities with the functional and abstract nature of computer programs and programming practices that favour re-use and modularisation of source code.
It then argues that certain changes in law that permit reverse engineering and partially codify the approach to non-literal copyright infringement; the judicious interpretation and application of existing protection and the introduction of measures such as pre-patent grant opposition would more fairly balance creators' and users' rights. Ultimately, it concludes that the most equitable route is for creators to eschew the current forms of IP protection in favour of free and open source software and open business models, which permit innovation sharing, enable viable revenue generation and attribution for creators and enable user access.

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