Protecting SA-developed software, especially for the cellular industry, is being frustrated by the inadequacy of the Copyright Act and the fact that it cannot be registered in terms of the Patents Act.
This is according to law firm Jan S de Villiers, whose intellectual property attorney Tarryn Dixon says the Copyright Act fails to give the protection the drafters originally intended, and while better protection could be offered in terms of the Patents Act, software cannot strictly speaking be patented.
"Unless software developers know they can protect their inventions, the incentive to innovate is going to be limited. Our growing mobile telecommunications industry is most threatened by this problem. The 'patentability` of locally developed computer software deserves urgent attention from our legislators," Dixon says.
She says it has long been debated whether the protection afforded in terms of the Copyright Act adequately protects source code.
EU developments
The debate in SA has been fuelled by recent developments in the European Union (EU) with regard to software patentability. South African patent law has been largely modelled on the corresponding British legislation, and any noteworthy amendments to patent law as it applies in the EU may potentially influence the development of patent law in SA.
"Traditionally, patents for inventions involving software have been allowed in Europe, with the European Patent Office having set the general standard for such inventions," says Dixon. "The standard requires the invention to provide a `technical solution` to a `technical problem`."
But the situation has been compounded as there is no clear definition of what constitutes `technical`, because there have been divergent interpretations of the law in a number of EU contracting states. This has led to confusion among practitioners and businesses as it undermines their ability to make informed decisions regarding the protection of their intellectual property.
The big directive
Dixon says a directive has been proposed to bring harmony to the approach to be adopted in the EU.
"The directive is, however, unlikely to be adopted in its current form and so a final directive seems to be a long way off. The current draft directive includes provisions that ostensibly reduce the scope of patent protection in the field of software. The position in the EU at present is, therefore, still undecided."
The same difficulties and frustrations experienced by British businesses in trying to protect their intellectual property are being experienced by South African businesses, with particular reference to the mobile communications industry.
"South African business demands clarity and reform of the law regarding protection of software and for the moment, the proposed EU directive is at centre stage," Dixon says.
US law makes provision for software to be patented.
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