Whose App is it Anyway? Ownership of copyright in computer-generated materials
The information economy has been characterised by a growing demand for easy and speedy access to information and technology-driven content and services. This has led to a proliferation of software applications, accessible through devices of all types. These include mobile applications (“apps”) designed to run on a mobile device such as a smartphone or tablet computer. Apps have been instrumental in promoting business efficiency by providing access to fast, reliable and updated information and even processing such data in order to produce solutions and products for users. Over the last few months, due to effects of the COVID19 pandemic, with lockdowns and social distancing becoming the norm, the demand for resources that can be accessed online has dramatically increased and more and more businesses are making use of technology to advertise and distribute their products services.
It has been recognised for some years that computers have reached a level of sophistication where they are capable of collating information and using it to generate original material. This may take the form of words or images; a device, programmed with the correct software, would be capable of “researching” information and creating a report such as an economic outlook, which could be reflected in a written article, or a series graphs, or both. Another example is the various “lifestyle apps”, contained in wearable devices, which track a user’s physical activities, diet etc., and produce a report for an insurer or guidance to enhance the user’s health and wellbeing. An interesting question then would be who owns the output of the app that created those words and images.
In South Africa, any original literary or artistic work, or computer program, is protected by copyright in terms of the Copyright Act (“the Act”). In terms of the Act:
“Literary works” include essays and articles; reports and memoranda and tables and compilations, including tables and compilations of data stored or embodied in a computer or a medium used in conjunction with a computer;
“Artistic works” include photographs, drawings, and sculpting related works, and architectural works;
“Computer programs” are sets of instructions fixed or stored in any manner which when used directly or indirectly in a computer, direct its operation to bring about a result. This covers the source code of a program and any object code developed from the source code.
In general, the owner of copyright in any work is the author of that work, unless the author created the work in the course of his or her employment. In the latter case, the owner of the copyright is the author’s employer. Where the work is the result of joint authorship, as many commercially designed apps are, copyright is owned by the co-authors or their employer (or employers, if that they are employed by different companies).
It follows that, in order to establish who owns the copyright in the content or output of any app, it is necessary to identify the author.
In the case of diagrams, drawings or images included in an app, and which were created by an identifiable human author, or authors, the Act identifies the author as the person who first made or created the work, and, in the case of photographs, in the person responsible for the composition of the photograph. In the case of reports, memoranda, tables and compilations, these are protected as “literary works” and the author is also deemed to be the person who first made or created the work.
In the case of the underlying software directing the operation of an app, which falls within the definition of a “computer program” in terms of the Act, the author is the person who “exercised control over the making of the program”. This generally means the person who undertakes the arrangements necessary for the creation of the work and who directs the direction the development should take.
However, in the case of computer-generated works, where no human being was directly responsible for the end product, the situation is more ambiguous. Different positions have been taken in various jurisdictions.
These range from the view that only a human being may be the author of a copyright work, and that therefore, where no human being can be identified as being the author, no copyright subsists in the work, to granting copyright to the person who made possible the operation of artificial intelligence that resulted in the creation of the work.
App developers need to be aware of these issues before making their works available for public use. In order to avoid falling prey to the ambiguities in the legal position, and risk losing the fruits of their knowledge, skills and efforts, they need to make sure that the right safeguards are in place. These would include putting in place proper contracts with all the individuals and businesses involved in the creation of the app, in which they acknowledge the ownership of copyright by the party who initiated, financed and coordinated the development. Users of the app should also, as a condition of use, be required to acknowledge that copyright, in the content of the app, as well as any literary or artistic material it may generate, vests in the entity from whom the app was bought.