A right to read object code — software copyright law and the development of a decompilation exception in South Africa

• Author: Jooste, C.
• DOI: https://doi.org/10.47348/SAIPL/v9/a3
• Published date: 10 December 2021
• Pages: 35-66
• Citation: (2021) IPLJ 35
• Date: 10 December 2021

35

https://doi.org/10.47348/SAIPLJ/v9/a3

A RIGHT TO READ OBJECT CODE

– SOFTWARE COPYRIGHT LAW

AND THE DEVELOPMENT OF A

DECOMPILATION EXCEPTION IN

SOUTH AFRICA



Consolidoc Postdocto ral Fellow in Law, Department of Mercantile La w, Faculty of

Law, University of Stelle nbosch

ABST RACT

The opport unity to read and ex tract knowledge from a law fully obtained copy of

any published work is a cor nerstone of copyrig ht law, except in the case of computer

programs. T his article examin es the development of an exception to copy right protection

that will per mit decompilation of object code as a me ans to access its underlyin g ideas.

It illustrat es that the persistent l ink between softw are and literary wor ks leads to an

unduly nar row view of decompilation. This cont ention is supported by a basic te chnical

illustrat ion of the decompilation proce ss to support the subm ission that reading object

code should not amou nt to copyright infri ngement in any way. Thereafter, the pro posed

decompilation exce ption in South Africa n copyright law is crit ically analysed in light

of the developmental objec tives expressed in national p olicy, to formulate an alternat ive

   

KEYWORDS: soft ware; computer program; d ecompilation; object code; idea s;

knowledge; access.

  

Much ink has been spilt to explai n why copyright protection does not restrict

the use of ideas expressed in th at work. Maintaining the balance bet ween

private, potentially com mercial interests in copyrig ht and the public, socio-

moral and cultur al interests in access to in formation is at the core of wide

debate concerni ng the future of intellectua l property law.1 In the case of

* BA(Law), LLB, LLD (Stell). This a rticle was prepared w ith financial sup port from the Vice-

Rector: Resea rch, Innovation and Postg raduate Studie s and is based on my LLD disser tation

entitled Deco mpilation and copyr ight in ideas – the protect ion of non-literal eleme nts of

computer software and the idea/expression dichotomy (p ublished LLD disse rtation, St ellenbosch

University, 2020, available at htt p://hdl.handle.net/ 10019.1/109088).

1 In the context of this article , dealing specific ally with computer prog rams, the debate is

aptly summa rised by E Samuels ‘The idea- expression dichotomy in c opyright law’ (1989) 56

Tennessee Law Rev iew 321 366 et seq. Similarly, but more recent ly, in A Story ‘Intellectu al

propert y and computer soft ware: A battle of compe ting use and acc ess visions for cou ntries of the

south’ (2004) (10) UNCTAD-ICTSD Projec t on IPRs and Sustainable De velopment 3. See also

AE Reznick ‘Syne rcom Technology In c v University Computing Co.: Copy right protection for

computer form ats and the idea/expre ssion dichotomy’ (1980) 8 Rutgers Computer & Techn ology

Law Journal 65 a nd PG Spivack ‘Does form follow fun ction? The idea/expression d ichotomy in

copyright pr otection of computer softw are’ (1988) 35 UCLA Law Review 723. In t he context of

(2021) IPLJ 35

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copyright and, in p articular, infri ngement of rights vested in assets that

drive the so-cal led fourth industrial revolution,2 n amely software and data,

the debates have seen a frag mentation of traditional copyright law i nto two

schools of thought.

On the one hand, the propone nts of a moderate approach argue that

copyright law maintai ns a suitable balance for the use of ideas by means of a

fair dealing or fair u se system, which should, at most, be updated to add ress

the needs of digital creator s and users.3 On the other hand, the pr oponents of

a minimalist ap proach suggest that copyright law is ill-suited to dig ital works

and, consequently, applies outdated pr inciples of property law in a manner

that strips user s of their newfound rights to use the intellect ual expression of

others.4 The continued legal ph ilosophical dichotomy has caused legislative

decompilation s pecifically, see the dis cussion regarding th e idea/expression dichotomy i n

AM Soobert ‘L egitimizing decom pilation of computer softwa re under copyright law: A s quare

peg in search of a squ are hole’ (1994) 28 John Marshall Law Review 105 110–1. In the context

of Africa, a nd with a focus on the expor t of knowledge, see JJ Baloyi ‘Demyst ifying the role

of copyright as a t ool for economic development in A frica: Tackling the har sh effects of the

transfera bility principle in co pyright law’ (2014) 17 (1) PELJ/PER 89. Regarding ac cess to

knowledge prote cted by intellectua l property and the d evelopmental agenda in t he African

context, see C Ncu be ‘Decolonising intel lectual prope rty law in purs uit of Africa’s development’

(2016) 8(1) World Intellectual Property Organization Journal 34; C Armstro ng, J de Beer &

D Kawooya et al (eds) Access to k nowledge in Africa Th e role of copyright (2010); LM Palmer

‘Balancing int ellectual proper ty rights with public obligatio ns in developing nations: Le ssons

from Afr ica’ (2006) 20(1) Critical Arts 62 and T Pistor ius ‘Copyright in the infor mation age:

The catch-22 of digit al technology’ (2006) 20(1) Critic al Arts 47.

2 The term was fir st introduced as a st and-alone concept by the Exe cutive Chairman of th e

World Economic Forum , Prof Klaus Schwab, at Davos 2016. See K Schwab ‘The four th

industr ial revolution: What it mean s, how to respond’, available at https://www.weforum.org/

agenda/2016/01/the-fourth-industrial-revolution-what-it-means-and-how-to-respond/ (accessed

in July 2021) and K Schwab The Fourt h Industrial Re volution (2017) 7, where the author sugges ts

that the four th industrial revolut ion started at the be ginning of this cen tury and builds up on the

digital revolutio n. An earlier term used t o describe the same concept , namely, Industrie 4.0 or

Industr y 4.0, first appeare d in a 2011 German government memor andum (see H Kagerma nn,

W-D Lukas & W Wahlster ‘I ndustrie 4.0: Mit dem inte rnet der dinge auf dem weg z ur 4.

Industr iellen revolution’, available at https://web.archive.org/we b/20130304101009/http://www.

vdi-nachrichten.com/artikel/Industrie-4-0-Mit-dem-Internet-der-Dinge-auf-dem-Weg-zur-4-

industr iellen-Revolution/52570/1 (accessed in July 20 21) as a shorthan d term to describe t he

impact of digit alisation on indust ry in general and, a ccording to Schwab, was coi ned at the

Hannover Fair in 2011 to descr ibe how digital tec hnologies will cha nge ‘the organiz ation of value

chains.’ See Schwab 7. The ter m fourth indust rial revolution is not unive rsally acknowledged as

a clearly define d or separate sta ge of development, with some a rguing that it do es not meet all the

hallmark s of a distinct revolution but is ra ther a further evolut ion of continued indust rialisation

and organisa tional development. See fur ther W Schroeder & FES Lo ndon Germany’s Industry

4.0 Strateg y Rhine Capitalism in th e Age of Digitalisation (2016) 2; P Priseca ru ‘Challenges of

the fourth i ndustrial revolutio n’ (2016 ) 8(1) Knowledge Horizons. Economics 57 58–60.

3 Inf ra (n4).

4 For the pu rpose of this intr oduction, the schools of tho ught are divided into t wo broad antipodal

classes in so fa r as these approaches descr ibe the outermost extre mes in relation to the role of

copyright a nd, in particula r, the nature of infr ingement in the digit al environment. However,

there are some s chools of thought which exist som ewhere on a continuum bet ween the two

points. In th is respect, see the co mprehensive analysis in OS Mw im & T Pistorius ‘Review

of legal philosoph ical approach to digital c opyright manageme nt and its implications for

knowledge degene ration in Africa’ (2017) Computing Conference 2017 1029–1030. The various

36 South African Intellectual Property Law Journal (2021) 9

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lethargy and a sprea ding piracy panic that some have describ ed as ‘digital

gridlock’.5

Tempting as it may be to add yet another offering to th is debate, there is

little point. This is bec ause both of these broad schools of thought direct the

debate towards a single ideal, namely the u se of another’s ideas. However,

in some cases, notably that of softwa re, this is not the correct star ting point.

Before one may, potentially, use another’s ideas, it is necessary to access the

idea. Similarly, it is premature to a rgue about the extent to which an idea

may be repurpose d if the law prohibits access to that idea. In simple ter ms,

an idea is only useful if you k now what the idea is, regardless of whether or

not copyright or any other form of protect ion vests in that idea. Therefore,

when addressing the public/pr ivate interest debate in relation to software, it

is necessary to u nderstand why     

another’s ideas, must be permissible before one may enter tain a debate about

how the use of those ideas might be rest ricted.

In this context, th is article examines the legal st atus of a particular met hod of

accessing ideas contai ned in computer program code, namely decompilation,6

and asks whether South Af rican copyright law is correct ly positioned.

An attempt is made to a lign the most basic principle of copyright law, namely

the exclusion of ideas from the scope of protection, with the re ality of software

engineeri ng.

The dilemma unde r discussion may be summarised a s follows. To acce ss

the meaning in a t raditional literary work, one mus t read it. The same is true

of a musical work. Provided that one possesses the nec essary skill, such as

a command of the langu age or knowledge of musical notation, nothing in

schools of thought a re well cited and summaris ed by T Pistorius & OS Mwim ‘The impa ct of

digital copy right law and policy on access to k nowledge and learning’ (2019) 10(1) Journal of

the Reading Asso ciation of South Africa 1 2 i n relation to infringem ent, and by J Hergueux &

D Jemielniak ‘Shou ld digital files be co nsidered a commons? Copy right infrin gement in the

eyes of lawyers’ (2019) 35(4) The Information Society 198–205 199 in relation to the conc ept of

ownersh ip.

5 JH Reichman & R L Okediji ‘When copyrigh t law and science collide: Empower ing digitally

integrate d research methods on a global sc ale’ (2012) 96 Minnesota Law Review 1362 1368– 9.

Digital gr idlock is described as t he consequence of expand ing intellectua l property laws to

protect both t he original ‘upstr eam’ research results a nd the downstream work s or derivative

results, whic h impede the application of re search techniques, such a s decompilation of object

code. The author s refer specifically t o the ‘unprecedente d extension of copyright la w’ since

the 1990s while the l aw did not provide adequate e xceptions for conductin g further resea rch.

Therefore, they s ubmit (at 1370) that: ‘The end result is a grow ing conflict bet ween private

rights and publ ic goods at the core of today’s most promisi ng research techniq ues. Enlightened

policymaker s view these upstream d ata and information r esources as public goods t hat need to

be widely shared i n order to produce more downst ream commercial applicat ions that advance

public welfare. In c ontrast, intellect ual property laws now im pede access to scientif ic data and

literatu re, just at the time when developm ents in scientific rese arch methods require t he use of

automated k nowledge discovery tool s that depend on unfe ttered access a nd re-use conditio ns for

their succes sful applications’ (origi nal citations omit ted).

6 The c orrect and appro priate definit ion of decompilation in e ither technical sof tware engine ering

terms or in le gal terms is a central fe ature of this arti cle. It will be shown that the two po ssible

views are at odds a nd, therefore, a sing le definition of de compilation is not provid ed. The process

of decompilation is d escribed fur ther below in para 2.

A RIGHT TO READ OBJECT CODE – SOFTWARE COPYRIGHT LAW AND THE

DEVELOPMENT OF A DECOMPILATION EXCEPTION IN SOUTH AFRICA 37

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