IP protection law divides ICT industry

As the world celebrated World Intellectual Property (IP) Day, the South Africa (SA) ICT industry was split into two camps with regards to the future of local software law and regulations.

Two extreme factions exist, with one group believing that the SA Copyright Act is inadequate for the protection of software and IP, while the other group maintains that any further tightening of the law would be technological suicide for the country. The former group, mostly motivated by the U.S. and U.K. IP trends, has called for the Patents Acts to be the primary law used for the protection of source code, as it is in the U.S.

Says IP attorney, Tarryn Dixon: "Unlike in other countries, where the Patent Act can be used for the protection of software, in SA, developers have been writing software, but are only able to protect it through the Copyright Act. "

She says if more protection was granted through the Patents Act, then there would be co-ownerships, and people would not worry about the abuse of their source code. "In this way competitors will be more relaxed about helping each other, with the knowledge that their ideas are secure and cannot be exploited, she says.

But Reinhardt Buys, IP Attorney at Buys Inc., disagrees, and believes that if software patenting is allowed it will stop the growth of technology in SA. "We need software to be developed to increase technology, and patenting it will make that impossible. It will also stifle BEE, because, at the moment, one of the means of increasing technology accessibility is by availing it to SMEs and BEE companies.

In a developing country like SA, where access to technology is limited, small companies will have to pay millions just to have access to some software, Buys says.

He says that SA should not blindly follow the model used in already developed countries, because, if the law was changed, there would be no competition in SA.

Buys argues that patenting is strongly anti-competitive as large organizations would have patent rights to certain software and this would create a situation similar to a monopoly. "This is because if software is patented it does not only stop someone from using the product, but also stops them from making a similar product, and if people do not have a choice they are forced to buy a particular product, says Buys.

This difference in views has also caused differing responses to the Business Software Alliance's Truce Campaign -- held in a bid to create awareness about the protection of IP. The truce also intends to encourage companies to legalize software. The 90-day truce was extended for another month in commemoration of World Intellectual Property Day.

Those that believe that IP should be registered under the Patents Act see the truce as a step towards the achievement of this goal, the opposite camp sees it as a positive measure around protecting existing copyright, but does not believe that stricter measures are necessary.

And, as Buys concludes, "As long as there is a lobby for the patenting of IP, there will always be a lobby against it.