Bergh and Others v Agricultural Research Council (SCA) (unreported case no 93/2019, 1-4-2020) (Navsa JA) (Wallis, Van der Merwe and Schippers JJA and Mojapelo AJA concurring)

This matter relates to an appeal, which dealt squarely with the issues surrounding the development of computer programs and copyright. Various sections of the
Copyright Act 98 of 1978 were considered and the Animal Improvement Act 62 of 1998 was also considered as the facts of the appeal concerned a copyright dispute in relation to ‘BeefPro’, a computer program that serves as a cattle or herd management tool.

Short overview of the judgment

In reaching the conclusion that the appeal was to be upheld with costs, Navsa JA interrogated the three possible situations where the issues of copyright and computer programs intersect, namely –

• where a programmer writes a program while not being under any contractual obligation to do so;
• where a programmer writes a program in fulfilment of their obligations in terms of an employment contract;
• a programmer writes a program in fulfilment of their obligations to do so under a commission contract (see R de Villiers ‘Computer programs and copyright: The South African Perspective’ (2006) 123 SALJ 315 at 320).

The key to understanding and solving the issues surrounding this inevitable intersection of copyright and computer programs is the concept of ‘control’. This key concept was explored in the case of Haupt t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd and Others 2006 (4) SA 458 (SCA), whereby, the Supreme Court of Appeal (SCA) considered the meaning of ‘control’ in relation to the definition of author of a computer program as provided for in s 1 of the Copyright Act. In this case, the SCA extended the meaning of ‘control’ to include instances where a position of authority is exercised over the programmer insofar as the development of the program is concerned, and, therefore, not only instances where the computer programmer is in control of writing a computer program. Simply put, if the computer programmer develops their work under a commission contract but is subject to a position of authority’s command their copyright could potentially vest in the position of authority.

The present case distinguishes itself from the Haupt case because the fourth appellant (the programmer) was not subject to any checking and approval and was not paid for his efforts. As a result, the court found that the respondent failed to discharge the onus in relation to its claim of copyright and, therefore, the vested authorship lay in favour of the fourth appellant (the programmer).

Significance of this judgment

Although this case did not further develop this area of law, I submit that it should be recognised for highlighting the increasing importance for computer programmers under a commission contract to understand the importance of control in relation to protecting their works.

Erika Heaton BA LLB (Rhodes) is a candidate legal practitioner at DPB Attorneys and Conveyancers Inc in Cape Town.

This article was first published in De Rebus in 2020 (June) DR 29.