Bergh and Others v Agricultural Research Council (93/2019) [2020] ZASCA 30; [2020] 2 All SA 637 (SCA); 2020 BIP 455 (SCA); [2020] HIPR 119 (SCA) (1 April 2020)

Bergh and Others v Agricultural Research Council (93/2019) [2020] ZASCA 30; [2020] 2 All SA 637 (SCA); 2020 BIP 455 (SCA); [2020] HIPR 119 (SCA) (1 April 2020)

The Supreme Court of Appeal found that the ARC failed to discharge the onus of proving ownership of copyright in the BeefPro computer program. The evidence established that Tim Pauw, acting independently and without remuneration or supervision, developed BeefPro under an oral agreement with the ARC, which expressly reserved copyright to Pauw and his corporate vehicle, BenguelaSoft. The ARC did not exercise the requisite control over the making of BeefPro to be considered its author under the Copyright Act. Draft agreements and correspondence confirmed that BenguelaSoft was to retain copyright and receive the majority of licence fees. The ARC’s reliance on s 5(2) of the Copyright Act was...

Citation
[2020] ZASCA 30
Parties
Appellant: Leslie Bergh; Appellant: Bull’s Eye Consulting; Appellant: BenguelaSoft; Appellant: Tim Pauw; Appellant: Naomi Havenga; Respondent: The Agricultural Research Council
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 April 2020
Case Number
93/2019
Procedural Posture
Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town
Outcome
Appeal upheld; order of the court below set aside and substituted with dismissal of the application with costs, including costs of two counsel.
Judges
Navsa, Wallis, Van der Merwe, Schippers, Mojapelo
Legal Topics
Copyright in Computer Programs, Authorship and Ownership, Commissioned Works, Unlawful Competition, Statutory Interpretation, Administration of Justice
Intellectual Property Commercial and Corporate Copyright in Computer Programs Authorship and Ownership Commissioned Works Unlawful Competition Statutory Interpretation Administration of Justice

Case Brief

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Parties

Leslie Bergh

Appellant

Bull’s Eye Consulting

Appellant

BenguelaSoft

Appellant

Tim Pauw

Appellant

Naomi Havenga

Appellant

The Agricultural Research Council

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 Whether the Agricultural Research Council (ARC) proved ownership of copyright in the BeefPro computer program.
  2. 2 Whether the ARC exercised sufficient control over the making of BeefPro to be considered its author under the Copyright Act.
  3. 3 Whether the ARC’s claim based on s 5(2) of the Copyright Act, regarding works made under the direction or control of the state, applies to BeefPro.

Ratio Decidendi

The Supreme Court of Appeal found that the ARC failed to discharge the onus of proving ownership of copyright in the BeefPro computer program. The evidence established that Tim Pauw, acting independently and without remuneration or supervision, developed BeefPro under an oral agreement with the ARC, which expressly reserved copyright to Pauw and his corporate vehicle, BenguelaSoft. The ARC did not exercise the requisite control over the making of BeefPro to be considered its author under the Copyright Act. Draft agreements and correspondence confirmed that BenguelaSoft was to retain copyright and receive the majority of licence fees. The ARC’s reliance on s 5(2) of the Copyright Act was...

Court Disposition

Appeal upheld; order of the court below set aside and substituted with dismissal of the application with costs, including costs of two counsel.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the court below is set aside and substituted as follows: 'The application is dismissed with costs, including the costs of two counsel.'