Let’s dive into the case of Emisha Software v Servsol Software Solutions [2024] ZAGPPHC 615.
Court and date of decision
High Court of South Africa, Gauteng Division, Pretoria, 6 June 2024
Key facts
- Emisha Software (applicant) paid Servsol Software Solutions (respondent) R6 million over seven years for professional services in developing the Insurance Guard System (IGS programme).
- Emisha claims exclusive ownership of the IGS programme, which hosts insurance products and functions as a “Credit Guard” for consolidated credit life insurance products debt counsellors use.
- In June 2023, Emisha discovered unauthorised new client activity and lost access to the IGS programme while still paying Servsol R60,000 per month.
Questions before the court
- Did Servsol infringe on Emisha’s copyright by accessing and modifying the IGS programme without consent?
- Does Emisha have exclusive ownership of the IGS programme, or is Servsol a co-owner?
Court’s decision
The court found that Emisha Software has exclusive ownership of the IGS programme and granted an interdict to stop Servsol from accessing or modifying the programme. However, the request to audit Servsol’s systems was not justified.
Reasoning
- The court found that the originality of the IGS programme is attributable to Emisha as the first author, as it exercised control over the programme’s development.
- Servsol did not satisfy the requirements for co-ownership and thus cannot claim joint ownership of the IGS programme.
- The court acknowledged the need for stringent copyright protection and the importance of distinguishing between the idea’s originator and the developer regarding ownership.
Practical impact on clients
This decision highlights the importance of clearly defining ownership and control in software development agreements. It underscores the need for clients to ensure they retain exclusive rights to software they commission, especially when third parties are involved in the development process.
Recommended actions
- Contract clarity: Ensure all software development contracts explicitly state ownership and control rights and detail the responsibilities of each party involved.
- Access control: Implement strict access controls and regular audits to monitor third-party interactions with proprietary software.
- Documentation: Maintain comprehensive records of instructions and development processes to support claims of ownership and originality.
- Legal provisions: Include specific clauses addressing copyright ownership, potential disputes, and the consequences of unauthorised access or modifications.
How ITLawCo can help
ITLawCo specialises in providing legal support tailored to the tech industry’s needs. Our team can assist you in:
- Drafting and reviewing software development agreements to ensure your ownership rights are clearly defined and protected.
- Implementing robust access control and compliance frameworks to safeguard your intellectual property.
- Advising on documentation practices to support your claims of originality and ownership.
- Navigating copyright laws and resolving disputes efficiently to protect your business interests.
By leveraging ITLawCo’s expertise, you can minimise legal risks, safeguard your intellectual property, and focus on driving innovation and growth in your business.
Read the case
Access the full case via Saflii.
