Software developers are in danger of losing the right to own the programs they have created if a judgment by SA's Supreme Court of Appeal is allowed to stand, warns technology lawyer Reinhardt Buys, of Buys Attorneys.

The verdict by five judges goes against years of international consensus on the rules of software ownership, making SA flout a global acceptance that the person or company that developed a software application is its owner.

The judges were hearing an appeal in the case of Haupt versus Brewers Marketing Intelligence (BMI). Anton Haupt had been an employee of BMI and wanted a program to analyse raw advertising survey data.

He hired an independent contractor, Byron Coetzee, to write the software. When Haupt fell out with BMI and left the company, Coetzee continued to work for him to complete the software.

Haupt later saw that BMI was distributing a program that copied his software, as BMI had got Coetzee to give it the source code written for Haupt. Haupt sued BMI in the Cape High Court for copyright infringement.

The court ruled that the copyright owner of a computer program is the person who exercises control over its development. That made BMI the owner, as Coetzee was initially contracted to BMI, and BMI controlled the development through Haupt. Haupt could not claim that his copyright was being infringed, as he was not the owner. In his appeal, Haupt argued that after he left BMI he made changes to the code, so the copyright in those changes was his.

By using the amended code, BMI had infringed Haupt's copyright. The appeal court held that BMI had copied a substantial amount of Haupt's amendments, and Haupt won. The worrying issue for Buys is that the person who actually wrote the software -- Coetzee -- has no rights to the program at all.

Instead, the appeal court found that the person in authority over the developer and who sets the requirements is the owner. The owner does not need to be a programmer to control the writing of a computer program, the court declared.

Buys says the verdict means that software developers do not own the code they write, as the ownership goes to the person who provides the specifications and tests the software. The verdict changes the rules of software ownership, and if it remains in place it could have disastrous consequences for the software industry, Buys says.

Business Day