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

ABSTRACT

The opportunity to read and extract knowledge from a lawfully obtained copy of

any published work is a cornerstone of copyright 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 illustrates that the persistent link between software and literary works leads to an

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

illustration of the decompilation process to support the submission that reading object

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

decompilation exception in South African copyright law is critically analysed in light

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

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

KEYWORDS: software; computer program; decompilation; object code; ideas;

knowledge; access.

 

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

the use of ideas expressed in that work. Maintaining the balance between

private, potentially commercial interests in copyright and the public, socio-

moral and cultural interests in access to information is at the core of wide

debate concerning the future of intellectual property law.1 In the case of

* BA(Law), LLB, LLD (Stell). This article was prepared with financial support from the Vice-

Rector: Research, Innovation and Postgraduate Studies and is based on my LLD disser tation

entitled Decompilation and copyright in ideas – the protection of non-literal elements 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 specifically with computer programs, the debate is

aptly summarised by E Samuels ‘The idea-expression dichotomy in copyright law’ (1989) 56

Tennessee Law Review 321 366 et seq. Similarly, but more recently, in A Story ‘Intellectual

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 particular, infringement of rights vested in assets that

drive the so-called fourth industrial revolution,2 namely software and data,

the debates have seen a fragmentation of traditional copyright law into two

schools of thought.

On the one hand, the proponents of a moderate approach argue that

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

fair dealing or fair use system, which should, at most, be updated to address

the needs of digital creators and users.3 On the other hand, the proponents of

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

and, consequently, applies outdated principles of property law in a manner

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

others.4 The continued legal philosophical dichotomy has caused legislative

decompilation specifically, see the discussion regarding the idea/expression dichotomy in

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, and with a focus on the export of knowledge, see JJ Baloyi ‘Demystifying the role

of copyright as a tool for economic development in Africa: Tackling the harsh effects of the

transferability principle in copyright law’ (2014) 17 (1) PELJ/PER 89. Regarding access to

knowledge protected by intellectual property and the developmental agenda in the 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 Armstrong, J de Beer &

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

‘Balancing intellectual proper ty rights with public obligations in developing nations: Lessons

from Africa’ (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 first introduced as a stand-alone concept by the Executive Chairman of the

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

industrial revolution: What it means, 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

Industry 4.0, first appeared in a 2011 German government memorandum (see H Kagermann,

W-D Lukas & W Wahlster ‘Industrie 4.0: Mit dem internet der dinge auf dem weg zur 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-

industriellen-Revolution/52570/1 (accessed in July 2021) as a shorthand term to describe the

impact of digitalisation on industry in general and, according to Schwab, was coined 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 and, in particular, the nature of infringement in the digital environment. However,

there are some schools of thought which exist somewhere on a continuum between the two

points. In this respect, see the comprehensive analysis in OS Mwim & T Pistorius ‘Review

of legal philosophical approach to digital copyright management 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 spreading piracy panic that some have described as ‘digital

gridlock’.5

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

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

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

in some cases, notably that of software, this is not the correct starting point.

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

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

may be repurposed if the law prohibits access to that idea. In simple terms,

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

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

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

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

another’s ideas, must be permissible before one may entertain 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 African copyright law is correctly 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 under discussion may be summarised as follows. To access

the meaning in a traditional literary work, one must read it. The same is true

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

a command of the language 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 ‘Should digital files be considered a commons? Copyright infringement 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 & RL Okediji ‘When copyright law and science collide: Empowering digitally

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

Digital gridlock is described as the consequence of expanding intellectual property laws to

protect both the original ‘upstream’ research results and the downstream works or derivative

results, which impede the application of re search techniques, such as decompilation of object

code. The authors refer specifically to the ‘unprecedented extension of copyright law’ since

the 1990s while the law did not provide adequate exceptions for conducting further resea rch.

Therefore, they submit (at 1370) that: ‘The end result is a growing conflict between 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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