Legal spat could shut down the entire police service
Intellectual property rights dispute could result in shutdown of vital forensic systems
An intellectual property rights legal battle that looms over a multimillion-rand computer software programme could essentially shut down the police.
The battle revolves around Forensic Data Analysts (FDA) and an allegation that it is using another company’s systems without permission.
The SA Police Service awarded the FDA contracts to help it manage its evidence, firearms control, and fingerprint systems. The police need access to these systems in order to function properly.
But now a Pretoria-based company, called the Forensic Authentication of Commodities Track and Trace (FACTT), claims that FDA has gone beyond an agreement and is misusing certain of its systems.FDA and its owner, Keith Keating, have been given until Friday to return all intellectual property and software source codes belonging to FACTT. These source codes allow the FDA to switch off essential police services.
The police have already once been shut out of these critical IT systems. This was during a payment dispute between the police and the FDA. The systems have since been turned back on – but now they are under threat again.
Johannesburg law firm Adams&Adams last Thursday issued a letter of demand to FDA for it to return all intellectual property belonging to FACTT.In the letter, Adams&Adams partner Johnny Fiandeiro tells FDA, Keating, and the police that FACTT was terminating a 2005 licence agreement it had with FDA.
“As you are aware, the rights licensed to FDA in terms of the agreement were limited to SAPS and law enforcement agencies in Nigeria.”
This, states Fiandeiro, was limited to firearm permit, evidence, and asset management systems, and for systems around the coding and marking of police firearms.
“We have been advised that you have utilised other systems belonging to our client, including PCEM system which falls outside of the agreement,” said Fiandeiro.
PCEM is its Property Control and Exhibit Management system which is used, among other things, to manage evidence from crime scenes.Fiandeiro says FACTT was terminating the agreement with immediate effect and wanted FDA to return all its intellectual property, source codes and programs by Friday.
FACTT owner Daan Davis said they were the inventors of PCEM and had patented it in both South Africa and the US.
“As far as we are concerned FDA are in breach of our contract which we had with them,” said Davis.
Trish Richardson, Harebueng Management Services director, was contracted by FACTT to investigate what had happened with the company’s intellectual property licence and how it came to be that FDA was in the position to control access to some of the police’s critical operating systems.
“FACTT cannot understand how FDA is now in possession of this [source] code as it only has the licence to use the software and not be in possession of any codes, with FACTT owning both the code and the patent for the code."
She said while FACTT had sold FDA the right to use the licence for the police to operate their systems for R1.5-million, they had not given the source code to FDA or any other third party.
“We cannot find a single document, contract or e-mail that says FACTT handed over the source code to FDA.”
But the FDA’s Keating slammed the allegations as ridiculous, saying there was a signed agreement for the sale of intellectual property from FACTT to FDA, “and the payments against such sale”.He said they would not return the licences or any other intellectual property, “as we are the rightful owners and can prove this. We are 100% happy that we own the intellectual property outright and that FACTT have no claim against the intellectual property. This is purely opportunistic and will not succeed. We will be informing Adams&Adams of our position after consultation with our legal team.”
On Wednesday, parliament’s standing committee on public accounts was briefed by the State Information Technology Agency on controversial IT contracts, including the alleged irregular awarding of multibillion-rand contracts to FDA. This agency awards IT government tenders.
National police commissioner Khehla Sitole was recently quoted as telling the portfolio committee on police that some of their contracts with FDA “were shaped in such a manner that they take away the sovereignty of the state”.
According to a media report in April, Sithole said: “This renders the organisation open to manipulation.
“It automatically became a national security threat.”
The police declined to comment on the current dispute between FDA and FACTT, saying it was a matter between two private companies.