Copyright protection of computer programs

Karjiker, Sadulla (2016-01)

CITATION: Karjiker, S. 2016. Copyright protection of computer programs. South African Law Journal, 133(1):51-72.

The original publication is available at https://journals.co.za/content/journal/jlc_salj

Article

This article seeks to address a misconception concerning the scope of copyright protection of computer programs. It has been suggested that unlike the US courts, the UK and South African courts have not drawn a proper distinction between functional works — such as computer programs—and other copyright works, with the result that they are more likely to protect ideas, rather than their particular expression. While this may have been true at some stage, it is certainly not the current position in the UK. The decision of the court in Navitaire Inc v easyJet Airline Company & another, and subsequent decisions, represented a sea-change in UK copyright law relating to computer programs, resulting in comparatively thin copyright protection for computer programs, which corresponds to the legal position in the US. It was the recognition of the functional nature of computer programs that led to this change in how programs should be assessed in terms of copyright doctrine. This more limited protection is considered to strike an appropriate balance between providing the necessary incentives for the production of computer programs, while allowing for a sufficiently large public domain.

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