États-Unis d'Amérique
Afrique du Sud
Droit d'auteur et droits connexes
(b) Please explain why a computer program is "by definition excluded from being a literary work" under South African law.
The exclusion of a "computer program" from the definition of "literary work" was brought about in 1992 when the sui generis category of copyrightable work, namely "computer program" was created. As explained above, the effect of this was to bring about a situation that all computer programs made subsequent to 1 January 1979 were protected as "computer programs". The objective was to make "computer programs" and "literary works" mutually exclusive categories of works. The term "computer program" is defined in Section 1 of the Copyright Act to mean "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 preparatory workings made in the course of creating a computer program are not excluded from the definition of "literary work", and thus qualify as literary works. Only once the work is capable of description 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 has a "computer program" come into being and is the work thus excluded from being a literary work. Factors which influenced the creation of the sui generis category of copyrightable work "computer program" were the difficulty of proving authorship of a computer program as a literary work for purposes of litigation, the nature of some of the infringing acts, the necessity to make provision for the making of back-up copies and the practicalities of instituting copyright infringement litigation together with the burden of proof under South African litigation procedure.