THEME 1: COPYRIGHT AND "WORKS":

Saturday, November 16, 2024 10:31 PM

Learning Outcome 1: Explain "copyright" as a concept:

• A copyright is governed by the Copyright Act 98 of 1978

• Copyright is the only form of intellectual property right provided for by statute which is
unregistrable, or which does not have some form of registration as a requirement
for it's subsistence, the exception being cinematograph films.
• It subsists automatically provided that certain conditions are met.
• Copyright grants the owner of the right exclusive statutory rights, limited in duration, in
the rendering or performance of certain dealings or acts in relation to specified works,
and the right to prevent others from performing those acts in relation to the protected
works.
• The rationale behind copyright is to afford the owner the opportunity, during the
duration of the right, to exploit and profit from the protected work, and in doing so
providing motivation for further innovation or creativity .

Learning Outcome 2: Discuss the classes of "works" that can be subject to copyright,
with reference to:

The importance of classification:

• A work must be correctly categorized as different principles may apply to different
types of work. If a work does not fall within the ambit of any of the nine types of works
provided for in the Act, copyright will not subsist in it.
• Correct classification of a work is essential in order to determine the extent of
protection and issues surrounding authorship and ownership of copyright, the duration
and nature of copyright protection are largely dictated by the type of work at issue.
• In the King v South African Weather Service case it was held that it is of utmost
importance for a copyright claimant to identify the work or works at the outset which
are said to have been infringed by the defendant.

Works Duration
Literary, musical • Term of protection is the lifetime of the author and 50 years from
and artistic the end of the year in which the author dies.
works (other • In the event that prior to the death of the author the work or
than adaptation has not been published, performed in public, offered
photographs) for sale to the public of records or broadcasted, the term of the
copyright continues to subsist for a period of 50 years from the
end of the year in which the first of the above acts is done.
• If the work or adaptation has not been published, performed in
public, offered for sale to the public of records or broadcasted,
the copyright endures in perpetuity.
Cinematography • Term of protection is 50 years from the end of the year in which
films, the work:
photographs and 1. is made available to the public with the consent of the owner of
computer the copyright, or
programs 2. is first published
which ever term is longer
Sound • Term of protection is 50 years from the end of the year in which
recordings the recording is first published
Broadcasts • Term of protection is 50 years from the end of the year in which
the broadcast first takes place
Programme- • Term of protection is 50 years from the end of the year in which
carrying the signals are emitted to a satellite
signals
Published • The term of protection is 50 years from the end of the year in
editions which the edition is first published.
• In the case of anonymous or pseudonymous work, the copyright
subsists 50 years from the end of the year in which the work is
made available to the public with the consent of the owner of the
copyright, or from the end of the year in which it is reasonable to
presume that the author dies, whichever term is shorter.
• In the case a work of joint authorship, the term of the copyright
expires 50 years after the death of the last surviving co-author.
• Where copyright subsists and vests in the state by virtue of
the provisions of S5 of the Copyright Act, the duration of the term
of the copyright is 50 years after the end of the year in which the
work is first published.
Works Effect or Content of copyright
Literary and • Copyright vests the exclusive right to do or to authorize the:
musical • Reproduction of the work in any manner or form
works • Publishing of the work if unpublished
• Performing of the work in public
• Broadcasting of the work
• Causing of the work to be transmitted in a diffusion service, unless
that service transmits a lawful broadcast, including the work, and is
operated by the original broadcaster
• Making of an adaptation of the work
in the Republic
Artistic • Copyright vests the exclusive right to do or to authorize the:
works • Reproduction of the work in any manner or form
• Publishing of the work if unpublished
• Including of the work in a cinematograph film or a television
broadcast
• Causing of a television or other programme , which includes the
work,to be transmitted in a diffusion service, unless such service
transmits a lawful television broadcast, including the work, and is
operated by the original broadcaster
• Making of an adaptation of the work
in the Republic
Cinematogra • Copyright vests the exclusive right to do or to authorize the:
phy films • Reproduction of the film in any manner or form, including making a
still photograph from it
• Causing of the film, in so far as it consists of images, to be seen in
public, or, in so far as it consists of sounds, to be heard in public
• Broadcasting of the film
• Causing of the film to be transmitted in a diffusion service, unless
such a service transmits a lawful television broadcast, including the
film, and is operated by the original broadcaster
• Making of an adaptation of the film
• Letting, or offering or exposing for hire by way of trade, directly or
indirectly, a copy of the film
in the Republic
Sound • Copyright vests the exclusive right to do or to authorize the:
recordings • making of a record embodying the sound recordings directly or
indirectly
• Broadcasting of the sound recordings
• Comminicating of the sound recordings to the public
• Letting, or offering or exposing for hire by way of trade, directly or
indirectly, a reproduction of the sound recordings
• Causing of the sound recordings to be transmitted in a diffusion
service, unless that service transmits a lawful broadcast, including
the sound recording, and is operated by the original broadcaster
in the Republic
Broadcasts • Copyright vests the exclusive right to do or to authorize the:
• Direct or indirect reproduction of the broadcast in any manner or
form
• Rebroadcasting of the broadcast
• Causing of the broadcast to be transmitted in a diffusion service,
unless such a service is operated by the original broadcaster
in the Republic
Programme- • Copyright vests the exclusive right to undertake, or to authorize, the
carrying direct or indirect distribution of such signals by any distributor to the
signals general public, or any section of it in the Republic, or from the
Republic.
Published • Copyright vests the exclusive right to make or to authorize the
editions making of a reproduction of the edition in any manner.
Computer • Reproduction of the computer program in any manner or form
programs • Publishing of the computer program if it was unpublished
• Performing of the computer program in public
• Broadcasting of the computer program
• Making an adaptation of the computer program
• Letting, or offering or exposing for hire by way of trade, directly or
indirectly, a copy of the computer program
in the Republic

Learning Outcome 3: Discuss the requirements for the subsistence of a copyright in a

work:
No formalities • In keeping with the provisions of the Berne Convention there
prescribed are no formalities prescribed for the subsistence of copyright
• Copyright law does not make provision for any process of
registration of copyright
• Copyright comes into existence automatically upon
compliance with certain requirements or condition this
stipulated in the act
• In order to enjoy copyright a work must be original and it must
exist in a material form, it must either be authored by a so-
called qualified person or be first published in South Africa or
in a Berne Convention country
Originality • For the subsistence of copyright in a work it must be original
• In order to be original a work must not have been taken or
copied from a prior work of another person, but rather it must
have been made, created or brought about by the author's own
independent skill and effort. It must have come about as a
result of the sweat of the brow of the author
• The question as to whether or not a work is original is a
factual inquiry:
• The author's labors and endeavors must firstly produce a
work. It must be shown that those labors and endeavors
actually produced something of substance
• Once the existence of a work has been determined the
authors independent contribution must be assessed on a
subjective basis. If there has been sufficient own effort,
copyright will subsist in the work
• In the case of a work that is partially original the authors
copyright will reside in those parts of the work which he is
able to show are his own creation, brought about through his
own endeavors.

Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645

(A)

• Waylite Diary CC (plaintiff) created a diary with a unique layout

and design
• First National Bank Ltd (defendant) produced a similar diary
without permission
• Waylite Diary CC claimed copyright infringement
• Section 23 of the Copyright Act 98 of 1978: prohibits
unauthorized reproduction or copying of a copyrighted work
• Section 2 of the Copyright Act: defines a "work" as including
original literary, musical, and artistic works
• The court considered whether the diary's layout and design
were original and protected by copyright
• The court compared the two diaries and found substantial
similarities
• The court held that First National Bank Ltd had copied Waylite
Diary CC's work without permission
• The court found First National Bank Ltd liable for copyright
infringement
• The court granted an interdict (injunction) to stop further
infringement
• The court awarded damages to Waylite Diary CC

Klep Valves (Pty) Ltd v Sauders Valve Co Ltd

- Klep Valves (plaintiff) manufactured and sold valves with a
unique design
- Sauders Valve Co Ltd (defendant) imported and sold similar
valves without permission
- Klep Valves claimed copyright infringement and passing off

- Section 23 of the Copyright Act 98 of 1978: prohibits

unauthorized reproduction or copying of a copyrightework
- Section 2 of the Copyright Act: defines a "work" as including
original literary, musical, and artistic works
- Common law principle of passing off: prohibits
misrepresenting goods as those of another

• The court considered whether the valve design was original

and protected by copyright
• The court compared the two valves and found substantial
similarities
• The court held that Sauders Valve Co Ltd had copied Klep
Valves' design without permission
 • The court also found passing off, as Sauders Valve Co Ltd's
products were likely to be confused with Klep Valves
• The court found Sauders Valve Co Ltd liable for copyright
infringement and passing off
• The court granted an interdict (injunction) to stop further
infringement and passing off
• The court awarded damages to Klep Valves

the test for copyright infringement involves two main

elements:

1. *Substantial similarity*: The allegedly infringing work must

be substantially similar to the original work.
2. *Causal connection*: The similarity must be due to copying
or inspiration from the original work, rather than independent
creation.

*Substantial similarity*:

- *Quantitative test*: The amount of similarity must be

significant, not just trivial or insignificant.
- *Qualitative test*: The similarity must relate to the essential
or distinctive features of the original work.

Material form • In order for subsistence of copyright in a work that work must
be reduced to a material form
• S2(2) of the Copyright Act states that a work, except a
broadcast or programme-carrying signals, shall not be eligible
for copyright unless the work has been written
down/recorded/represented in digital data or signals or
otherwise reduced to a material form
• Copyright does not subsist in thoughts, ideas or facts
• Copyright does not protect or vest in concepts, but rather in
the physical or material manifestation or embodiment of such
elements once they are created or come into being
Author a 'qualified • Publication means that the author of a work or in the case of a
person'/Work first work of joint authorship, any one of the authors, was a
published in Berne qualified person at the time of the work or is substantial part
Convention of it was made.
country: • A qualified person is a person who is a South African citizen
or is domiciled or resident in South Africa and in the case of a
juristic person of, a body incorporated on the South African
laws.
• Section 1(5) of the Act provides that a work is deemed to have
been published if copies of such work have been issued to the
public with a consent of the owner of the copyright in the work
in sufficient quantities to reasonably meet the needs of the
public, having regard to the nature of the work.

Learning Outcome 4: Discuss The Copyright Act 98 of 1978 and the regulations under
the Act:
Learning Outcome 5: Discuss the Intellectual Property Laws Amendment Act 28 of
2013:
Learning Outcome 6: Discuss the purpose and impact of the proposed Copyright
Amendment Bill on copyright:

Purpose To:•
• allow for the reproduction of copyright work;
• provide for the protection of copyright in artistic work; •
• provide for the procedure for settlement of royalties disputes;
• allow fair use of copyright work;
• provide for access to copyright works by persons with disabilities;
• provide for the protection of ownership in respect of orphan works;
• strengthen the powers and functions of the Copyright Tribunal; .
Impact •
* introduces provisions allowing for permission to be obtained for the use of
“orphan works”. Such works
include works whose owner is deceased. The Copyright Act creates a right
of property in a work and like
all other forms of property this right of property can pass to an heir in terms
of the Copyright Act and
the law of succession.
• Creates criminal offences for mild transgressions
 • Deals with piracy
• Introduces a general fairness test in section 12A(5) against which all forms
of fair use must be evaluated

Learning Outcome 7: Examine the international arrangements, in particular, the principle

in International Law of "national treatment":

The principle of national treatment in international law ensures that countries treat
foreign nationals and their intellectual property rights equally to those of their own
nationals, without discrimination. This principle is enshrined in various treaties,
including the Paris Convention, Berne Convention, and TRIPS Agreement, which cover
industrial property rights, copyright, and related rights. South African law aligns with
these international treaties, implementing national treatment through the Copyright Act,
Patents Act, and Trade Marks Act, thereby providing equal protection for foreign IP
rights holders. This promotes international cooperation, innovation, and the protection
of intellectual property rights, ensuring that creators and innovators are encouraged to
develop and share their work globally.