Bergh and Others v The Agricultural Research Council

The Agricultural Research Council (ARC), a statutory entity established under the Agricultural Research Act 86 of 1990, claimed copyright ownership in BeefPro, a computer program designed as a cattle/herd management tool. The ARC operates INTERGIS, a national integrated registration and genetic information system under the Animal Improvement Act 62 of 1998. In 2005, Tim Pauw (fourth appellant), a software developer, was approached by the ARC to develop BeefPro. According to Pauw and corroborating witnesses (Leslie Bergh, a former ARC employee who became first appellant, and Dr Van der Westhuizen), the ARC could not finance the development, so an oral agreement was made whereby Pauw would develop the program at his own expense, retain copyright through his entity Benguela Soft (third appellant), and receive 85% of sales and annual license fees collected by the ARC. Pauw developed the program independently using his own skills and expertise, with minimal input from the ARC beyond specifications and information. After Bergh left ARC employment in 2013, he began consulting through Bull's Eye (second appellant), and the program was rebranded as BenguFarm. Naomi Havenga (fifth appellant), another former ARC employee, also assisted with data services. The ARC terminated its service agreement with the South African Stud Book (sixth respondent below), which then established its own Logix system, allegedly using BeefPro. The ARC sought an interdict claiming copyright infringement and unlawful competition.

• Whether the ARC proved ownership of copyright in the BeefPro computer program
• Whether Pauw developed BeefPro under the control or direction of the ARC such that the ARC would be the 'author' as defined in the Copyright Act 98 of 1978
• Whether BeefPro was created in the course of employment such that copyright would vest in the ARC under s 21(1)(d) of the Copyright Act
• Whether BeefPro was made under the direction or control of the state such that copyright would vest in the state under s 5(2) of the Copyright Act
• What constitutes 'control over the making of a computer program' for purposes of determining authorship under the Copyright Act

1. The appeal is upheld with costs, including the costs of two counsel. 2. The order of the court below is set aside and substituted with: 'The application is dismissed with costs, including the costs of two counsel.'

For a commissioning party to be deemed the 'author' of a computer program under the Copyright Act's definition (the person who exercised control over the making of the program), it must prove it exercised meaningful control over the development process - including giving detailed instructions, requiring submission of work for checking and approval, and maintaining a position of authority over the developer. Merely providing functional specifications, periodic reviews, and final testing, without more, does not establish the requisite control. Where a developer works independently using their own skills and expertise, is not remunerated by the purported copyright owner, and the parties' commercial arrangements (such as revenue sharing) and draft agreements acknowledge the developer's ownership, copyright vests in the developer/author, not the commissioning party. The party claiming copyright bears the onus of proving ownership. Courts have an obligation to provide reasoned judgments in contested matters; failure to do so, particularly after unreasonable delay, brings the administration of justice into disrepute.

The Court expressed hope that it would not have to deal with similar circumstances in future regarding the failure to provide reasons for judgments. The Court noted that even if the ARC could be considered 'the state' for purposes of s 5(2) of the Copyright Act (which it doubted), the ARC still failed to prove Pauw worked under its direction or control. The Court observed that the case was 'not about the complexities of copyright law' but rather turned on what the evidence revealed about the terms under which BeefPro was commissioned. The Court noted that the claim against the sixth respondent (Stud Book) had been withdrawn, although the order below still included Stud Book, possibly due to the lengthy delay before the order issued. The Court agreed generally with the view expressed in academic commentary that mere provision of functional requirements and periodic review, without more, does not establish control over the making of a program.

This case establishes important principles for determining copyright ownership in commissioned computer programs under South African law. It clarifies that 'control over the making of a computer program' for authorship purposes requires more than merely providing functional requirements, periodic progress reviews, or final testing. The commissioning party must exercise authority over the development process, including giving detailed instructions and requiring approval of work. The case demonstrates that commercial arrangements (such as allocating 85% of revenues to the developer) and express contractual terms acknowledging copyright ownership are highly probative of the parties' understanding. It also confirms that statutory entities like the ARC are not automatically 'the state' for purposes of s 5(2) of the Copyright Act. Finally, the judgment reinforces the fundamental obligation of courts to provide reasoned judgments, emphasizing that failure to do so undermines public confidence in the administration of justice. The case provides important guidance on the distinction between employment relationships (s 21(1)(d)), commissioned works, and works created under state direction/control (s 5(2)).