Key proposed changes to copyright laws - software developers beware


The Portfolio Committee on Trade and Industry (the Committee) has been meeting to discuss its proposed amendments to the Copyright Act. Proposed changes are significant, as the right to develop and distribute programs such as APIs (application program interfaces) will no longer be limited to the owner or licensee of the copyright in and to the underlying computer program.

At a recent meeting, the Committee elected to incorporate general exceptions into the Bill regarding the protection of copyright in and to computer programs. These proposed general exceptions, set out in section 19B to the Bill, provide that a person may, without the authorisation of the copyright owner:

  • observe, study or test the functioning of a computer program in order to determine the underlying ideas and principles of that program, provided that the licensee does so while loading, displaying, executing, transmitting or storing the program; and
  • reproduce or translate code in order to obtain information which is necessary for the interoperability (i.e the ability to exchange information and to use the information which has been exchanged) of independently created computer programs with other programs.

These general exceptions are limited in that:

  • they must be exercised by a person who has a right to use the computer program;
  • the information necessary to achieve interoperability must not have been previously available;
  • they are confined to those parts of the original program which are necessary in order to achieve interoperability;
  • information obtained may not be used for goals other than those to achieve interoperability;
  • the information obtained may not distributed to others unless the goal is to facilitate interoperability; and
  • the information may not be used for any other act which infringes copyright.

If the proposed amendments become effective, copyright owners must ensure that their licence agreements address the manner in which licensees are able to utilise the licensed computer programs for the purposes of exercising their rights under section 19B. Copyright owners may also investigate making information available to assist licensees to achieve interoperability, which may limit the extent of the rights granted under section 19B.​​