A right to read object code – software copyright law and the development of a decompilation exception in South Africa

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

A right to read object code – software copyright law and the development of a decompilation exception in South Africa

Author Cobus Jooste

ISSN: 2521-2591
Affiliations: Consolidoc Postdoctoral Fellow in Law, Department of Mercantile Law, Faculty of Law, University of Stellenbosch
Source: South African Intellectual Property Law Journal, 2021, p. 35 – 66
https://doi.org/10.47348/SAIPL/v9/a3

Abstract

The opportunity to read and extract knowledge from a lawfully obtained copy of any published work is a cornerstone of copyright law, except in the case of computer programs. This article examines the development of an exception to copyright protection that will permit decompilation of object code as a means to access its underlying ideas. It illustrates that the persistent link between software and literary works leads to an unduly narrow view of decompilation. This contention is supported by a basic technical illustration of the decompilation process to support the submission that reading object code should not amount to copyright infringement in any way. Thereafter, the proposed decompilation exception in South African copyright law is critically analysed in light of the developmental objectives expressed in national policy, to formulate an alternative approach based on the inherent flexibilities in international law and local conditions.

Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) — Revisiting the justiciability of cross-border copyright infringement in South African courts

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) — Revisiting the justiciability of cross-border copyright infringement in South African courts

Author Thato M Moloto

ISSN: 2521-2591
Affiliations: Consultant, World Intellectual Property Organization (Copyright Management Division), Geneva
Source: South African Intellectual Property Law Journal, 2021, p. 67 – 86
https://doi.org/10.47348/SAIPL/v9/a4

Abstract

This contribution examines the basis for and implications of the strictly territorial approach of South African courts in cross-border copyright infringement cases, requiring litigants to bring separate infringement suits in every country where infringement is alleged. This position by the courts loosely hinges on principles of effectiveness, locality and comity, as well as the classification of all intellectual property — copyright in this case — as immovable incorporeal property. In this belated case note, the Roman-Dutch law origins from which this classification is inferred to be derived from the English common law precedent with which it is paralleled and private international law principles applicable are briefly interrogated in light of prevailing constitutional prescripts. This complete bar on the authority of local courts on what is a ubiquitous concern for rights holders is a matter with far-reaching consequences.

DABUS gains territory in South Africa and Australia: Revisiting the AI-inventorship question

by | Jan 15, 2022 | SAIPLJ, SAIPLJ 2021

DABUS gains territory in South Africa and Australia: Revisiting the AI-inventorship question

Author: Desmond Osaretin Oriakhogba

ISSN: 2521-2591
Affiliations: Senior Lecturer, Department of Mercantile and Private Law, University of Venda
Source: South African Intellectual Property Law Journal, 2021, p. 87 – 108
https://doi.org/10.47348/SAIPL/v9/a5

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Oriakhogba, DO
DABUS gains territory in South Africa and Australia: Revisiting the AI-inventorship question
Senior Lecturer, Department of Mercantile and Private Law, University of Venda
https://doi.org/10.47348/SAIPL/v9/a5

Abstract

This paper draws from and builds upon DO Oriakhogba ‘What If DABUS Came to Africa? Visiting AI Inventorship and Ownership of Patent from the Nigerian Perspective’ (2021) 42(2) Business Law Review 89. It reviews the recent granting of a patent by the Companies and Intellectual Property Commission (CIPC) to Dr Stephen Thaler in respect of the DABUS-generated invention in South Africa and the judgment of the Australian Federal Court (FCA) upholding AI-inventorship. The review, which is based on desk research, is conducted against a backdrop of statutory provisions and case law from both countries, the provisions of the Patent Cooperation Treaty (PCT) and relevant literature dealing with the inventorship question. The paper determines whether, without reform of the extant patent law and policy, recognition of artificial intelligence (AI) as an inventor does not undermine the foundational concept of human inventorship, and the central focus on human creation and agency for intellectual property protection in South Africa and Australia. In connection with this, the paper asks and examines the question of whether the CIPC patent grant and the FCA judgment can stand judicial scrutiny under the extant patent regimes in South Africa and Australia.

A Critical Analysis of the Amendments Proposed to the Social and Ethics Committee by the Companies Amendment Bill, 2018

by | Jan 12, 2022 | SAMLJ, SAMLJ V33 I2

A Critical Analysis of the Amendments Proposed to the Social and Ethics Committee by the Companies Amendment Bill, 2018

Authors: Delani Milton Mahhumane and Rehana Cassim

ISSN: 1996-2185
Affiliations: Former Postgraduate Assistant, Department of Mercantile Law, University of South Africa; Associate Professor, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 33 Issue 2, 2021, p. 153 – 175
https://doi.org/10.47348/SAMLJ/v33/i2a1

Abstract

The Companies Amendment Bill, 2018 proposes certain changes to the social and ethics committee established in terms of s 72(4) of the Companies Act 71 of 2008 and reg 43 of the Companies Regulations, 2011. These new provisions are critically discussed in this article. Although some of these provisions are commendable, others give rise to certain concerns examined here: the lack of clarity in the functions of the social and ethics committee, the proposed amendments regarding its appointment and composition, and the ambiguity in the exemptions from the requirement to appoint this committee. This article also suggests further amendments to the current legislative provisions regarding this committee.

Investigating the Need to Introduce Compulsory Interest Arbitration as a Method to Prevent Lengthy Strikes in South Africa

by | Jan 12, 2022 | SAMLJ, SAMLJ V33 I2

Investigating the Need to Introduce Compulsory Interest Arbitration as a Method to Prevent Lengthy Strikes in South Africa

Author: Mlungisi Tenza

ISSN: 1996-2185
Affiliations: Senior Lecturer, School of Law, University of KwaZulu-Natal
Source: South African Mercantile Law Journal, Volume 33 Issue 2, 2021, p. 176 – 199
https://doi.org/10.47348/SAMLJ/v33/i2a2

Abstract

The issue of lengthy strikes in South Africa has been a cause for concern since it destabilises the economy and can result in a loss of employment if it is not managed properly. A strike that takes too long to be resolved causes anger towards strikers, so creating a fertile environment for the eruption of violence between striking and non-striking workers. Damage to property and harm to civilians has been reported where striking workers have become violent during a strike. It appears that the existing remedies fail to curb long strikes and resultant violence, as unions and members continue with their action despite the granting of an order of interdict to stop the conduct. To solve the problem of long and consequently violent strikes, the article advocates the introduction of a compulsory interest arbitration in the labour relations law of South Africa. A compulsory interest arbitration will force the parties into arbitration once it is established that the strike has continued for an unreasonably long period without a solution. The use of compulsory interest arbitration will not be unique to South Africa, as other countries such as Canada and Australia use it in their labour relations systems – which helps them deal with long and possibly harmful or violent strikes. The article argues that lessons can be learned from these countries on how South Africa can deal with its own protracted strikes. The article further proposes that the LRA be amended to include a provision that will enable the Minister to intervene where the parties fail to reach agreement on disputed issues, and where it is in the public interest to do so. Introducing a compulsory interest arbitration in the labour relations system could limit the right to strike. However, the article argues that such a limitation may be justified in terms of s 36 of the Constitution.