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Copyright’s relevance in cloud offerings

• Software and computer programs enjoy protection too, writes Lynette Dicey

In the past two decades there have been significant advances in cloud computing, the provision of software-implemented services (Software-as-a-Service or SaaS) and web-based applications.

These offerings rely on software that runs on a remote server and are accessed by users from their own computer, via a network connection, rather than being locally installed on the internal memory of a user’s computer.

Software enjoys intellectual property protection afforded by copyright, explains Dina Biagio, an electronic engineer, patent attorney and partner at law firm Spoor & Fisher, Africa’s largest specialised intellectual property law firm.

“Copyright subsists automatically in an original work that is reduced to material form,” she says, adding that the Copyright Act defines different categories of copyright works which qualify for copyright protection, including computer programs.

As the word suggests, copyright generally prevents copying. But what are the implications of this for software vendors, resellers and licensees, particularly when software is hosted in the cloud?

“Conventionally, a computer program would be copied when installed onto the internal memory of a user’s computer and reproduced, at least in part (and temporarily) in the Random Access Memory (RAM) of the computer when used,” says Biagio. “Nowadays though, a provider creates a cloud offering by combining software applications with operating systems, drivers and other programs that enable remote access by a user. What this means is that the computer program of the application is physically present on the cloud provider’s server, which is accessed by a user via a network. The user does not gain access to this copy of the source code on the cloud server but merely gains access to the functionality of the software. Any command by the user is executed by the cloud server’s processor, which reproduces, again temporarily, bits of code from the RAM into its cache memory.”

It would appear that for cloud services and web-based applications used remotely, copying of the computer program is carried out by the provider, and not by users on their computers.

Unfortunately, when it comes to copyright, things are never simple, says Biagio.

“A software product is usually a complex work made up of a number of different copyright works. While the source code constitutes a computer program, there are typically other works that come into being when running the computer program, and these are displayed or performed via a graphical user interface (GUI). For example, using an app may result in the display of certain screen layouts, containing text or pictures, or the playing of a tune, which constitute artistic, literary or musical works.”

When a user runs a webbased application, the GUI displays or performs these other works on the user’s web browser. This is also a reproduction of the works on the user’s computer, says Biagio. “Assuming copyright subsists in these works (for example, that they meet the requirement for originality), this copying will constitute copyright infringement, if unauthorised.”

Does this mean a licence would be required to display the works generated on a user’s computer when accessing a website? Patrick O’Brien, an associate in Spoor & Fisher’s litigation department, says: “In SA, yes, but in other territories, such as Europe, there are infringement exemptions for temporary reproduction which is transient or incidental and an essential part of a technological process.”

Conclusions regarding the copying of a computer program may not be as straightforward as they at first appear, even though there may be no actual copying of the code when using a web-based application.

O’Brien explains: “Before computer programs were introduced into the South African Copyright Act in 1992 as a distinct category of work eligible for copyright protection, they were considered a species of literary work. The reproduction of visual elements that constitute GUI works which are the same as that of a second person were deemed by the courts to constitute an infringement of the source code of the second person from which his GUI works resulted, even where no access was had to the second person’s source code.

“However, the 1992 amendment expressly defines computer programs as a ‘set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result’.”

The definition, he adds, appears to allude to the fact that a computer reproduces a program when executed to bring about a result, but this does not mean a reproduction of the result is a reproduction of the computer program. A second product that delivers the same result by means of a different computer program therefore does not amount to a reproduction of the first program and is arguably not an infringement of the copyright in the computer program.

O’Brien concludes: “While copyright and copyright infringement are complicated, at the very least the unauthorised display of GUI works on the computer of a user of a webbased application are likely to constitute a reproduction of those works and will amount to copyright infringement, if copyright subsists.”

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2023-02-02T08:00:00.0000000Z

2023-02-02T08:00:00.0000000Z

https://bd.pressreader.com/article/281655374218724

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