South Africa: Introduction To The Law Of Copyright

The term "Copyright" is usually used to denote the right that an author vests in his work. The entitlements conferred to the holder of copyright or a person authorised by such holder, entitles him/her to exclusively control, use and adapt the work.

The recognition of Copyright means that an author is granted a restricted monopoly to exploit his original work provided that such work is part of a recognised category. In the first place, this enables an author to be rewarded or compensated for his labour, creativity, effort, skill and talent. Secondly, it serves as an incentive to the author to create more and better works. The monopoly is of a restricted duration. After the expiry of the relevant applicable period, the author’s work passes into the public domain and may then be used freely by others. In this way a balance is struck between the interests of the individual and that of society.

Copyright is a right separate from that of the personality of the author. As long as the author’s activity does not extend beyond that author’s personality, it will not attract protection. Once such activity assumes an individual and independent character wherein it is reduced to some outwardly perceptible form, it acquires an economic value and becomes in itself a suitable object of legal protection under copyright law. In the case of Video Parktown North (Proprietary) Limited vs Paramount Pictures Corporation 1986 2 SA 623 (T), the Court described the nature of copyright in the following terms:

Copyright has been described as a bundle of rights granting the holder thereof the right to do or authorise others to do any of the restricted acts described in sections 6 to 11 of the Copyright Act 98 of 1978 ("the Act"). In Chiadzwa v S [2004] JOL 12871 (Zimbabwe), the Court stated that ‘copyright must be understood, therefore, as a legal term which describes the rights given to creators for their artistic and literary works… The creators of the original works are protected by copyright and they or their assigns, have the basic right to the exclusive use or authorisation to others to use their works on agreed terms.’

It is to be noted that no registration is required for copyright to subsist in a work. However, this creates a higher burden of proof when endeavouring to establish the subsistence of copyright. Therefore, we always advise clients to keep accurate and detailed records as to how, when and by whom the work was created, to ensure that the author or creator of a work is clearly identified.

There are six basic requirements for copyright to vest:

1. there must be a work;
2. the work must fall within one of the categories listed in section 21 of the Act;
3. the categorised work must be original;
4. the work must exist in material form or be reduced to a material form;
5. the work must not be immoral;
6. the work must be made by a qualified person;
7. or if not a "qualified person", there must exist circumstances of first publication.

For copyright to subsist the subject matter in question must have sufficient substance to warrant the protection of the Copyright Act. When assessing whether the subject matter warrants categorisation as a "work", one applies primarily an objective test but subjective considerations may also be taken into account, such as the amount of effort and ingenuity which went into making the subject matter. Additionally, the subject matter must not be too commonplace, otherwise its endowment with copyright will place undue restrictions on others. Subject matter is regarded by the courts as commonplace if it is trite, trivial, common or garden, hackneyed or of the type which would excite no peculiar attent in those of the relevant art.

The subject matter will be assessed as a work if it has achieved its final form. In Payen Components v Bovic Gaskets 1995 (4) SA 441 (A), the Court asserted that a work is the final complete version when it is ready for utilisation or commercial exploitation. Features like effort, labour, skill and ingenuity must be taken into account.

Section 21 of the Act lists works that qualify for protection. A work must fall within one of these categories for it to qualify for protection. These are literary works; artistic works; musical works; cinematograph films; sound recordings; broadcasts; programme-carrying signals; published editions; computer programs.

For copyright to subsist in a work, it must be original. This does not mean, as it does in patent law, that the work must be inventive or novel, but rather it should be the product of the author’s effort and labour and should not be copied from other sources.

In Appleton v Harnischfeger Corporation 1995 (2) SA 247 (A), the court emphasized that for there to be copyright in a work there is no need for novelty or inventive thought.

It has often been stated by the courts that there is no copyright in ideas only in the form in which they are presented (Northern Office Micro Computers v Rosenstein 1981 (4) SA 123 at129B-E). Therefore, for copyright to subsist in some subject matter, it must at least exist in material form. Consequently, the condition of material form becomes the lower threshold for the subsistence of copyright. Section 2(2) of the Act states that ‘a work, except a broadcast or programme-carrying signal, 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’.

It is widely accepted that the courts will not protect works considered to be ‘improper, indecent or lacking in propriety’. (Goeie Hoop Uitgewers (Eiendoms) Bpk v Central News Agency 1953 (2) SA 843 (W)). However, with the changes to the boni mores that constantly take place within a society, and especially since South Africa is under transition, it is unlikely that the concept of "propriety" is a condition for the subsistence of copyright at present. Dean, an authority on Copyright Law and the author of ‘Handbook of South African Copyright Law’ (1987), is of the view that propriety is not a condition for the subsistence of copyright but is rather a condition for its enforcement i.e. copyright will subsist whether or not the work is considered to be immoral, but depending on the prevailing boni mores of society at the time, the courts will not come to the assistance of an owner of copyright if it is of the view that the work is lacking in propriety.

The Act specifies that a qualified person is an individual who is a South African citizen or is domiciled or resident in the Republic of South Africa and in the case of a juristic person, is a body incorporated under the laws of South Africa. Additionally, the Act has been extended to include persons domiciled or resident in a Berne Convention country or a body incorporated under the laws of a Berne convention country. A Berne convention country is a country that accedes to the Berne convention. South Africa is a party to the Berne Convention and the Act complies with the requirements of the Convention. The Berne Convention prescribes minimum standards for the protection of copyright and provides for the international recognition of copyright.

If the author is not a qualified person, the court looks to the circumstances of first publication. The Act defines ‘publication’ as the issue of copies of the work to the public, with the consent of the copyright holder, in sufficient quantities to satisfy the needs of the public.

There are two types of infringement – direct and indirect infringement.

S23(1) of the Act states that ‘Copyright shall be infringed by any person, not being the owner of the copyright, who, without the licence of such owner, does or causes any other person to do, in the Republic, any act which the owner has the exclusive right to do or to authorize.’ In other words, infringement occurs where a person performs any of the restricted acts which the owner has exclusive rights to do. This amounts to the unauthorised copying of the work or its commercial exploitation. Infringement not only occurs where the entire work is copied or misused but can also occur where there is copying or misuse of a substantial part of it. A substantial part refers to quality and not quantity. Therefore, the unauthorised copying of a small but vital part of a work constitutes infringement.

S1(1) of the Act defines "reproduction" in relation to the various categories of work protected by the Act. With respect to artistic works, a reproduction includes ‘a version produced by converting the work into three-dimensional form or if it is in three-dimensions, by converting it into two-dimensional form.’ A reproduction includes a reproduction made from a reproduction.

Reproduction is given a wide meaning in the Act. It protects against infringement in material and non-material form. This has significance in today’s age of computers, internet and e-commerce. Some examples of what would qualify as reproductions are: loading software and data into a computer; operating a computer program; downloading material from the internet; displaying material on a computer screen, including material sourced from the internet; and incorporating material in a website.

With respect to reproductions of artistic works, and in particular technical drawings, infringement can take place where one copies the drawing itself or copies the three-dimensional actualisation of the drawing, the latter being an indirect copying of the original drawing.

S 1(1) of the Act defines what would constitute an adaptation. For example, adaptations of literary works would, for non-dramatic works, be conversion of that work into a dramatic work; for dramatic works, the conversion of that work into a non-dramatic work. Translations would also constitute adaptations.

There can be no infringement by reproduction or adaptation unless there is copying. One must prove a link between the two works for there to be an adaptation or reproduction. Firstly, the courts objectively enquire as to whether there is a substantial similarity between the works. Secondly, the courts assess whether there is a causal connection between the plaintiff’s original work and the defendant’s alleged infringing copy. If either of these tests brings a negative conclusion, then there can be said to be no copying.

Indirect infringement occurs when certain acts are done without the consent of the copyright holder in relation to direct infringements. There are two forms of indirect infringement: unauthorised dealing in infringing copies of a work and permitting a public performance of a work to take place.

Guilty knowledge is required on the part of the person committing the alleged indirect infringement before the act in question can constitute indirect infringement. In Gramophone Co Ltd v Music Machine (Pty) Ltd & Others 1973 (3) SA 188 (W), the court held that guilty knowledge of the infringing nature of an article entails notice of facts such as would suggest to a reasonable man that a breach of copyright law was being committed.

An infringing copy is an article which is an unauthorised reproduction or adaptation of a work in which copyright subsists where the making of that copy infringes the copyright of that work.

Indirect infringement is committed by:

• importing into South Africa for a purpose other than private use;
• selling, letting or by way of trade offering or exposing for sale or hire;
• distributing for the purposes of trade, or for any other purpose, to such an extent that the holder of the copyright is prejudicially affected;
• acquiring an article relating to a computer program in South Africa, being an infringing copy of a protected work with the knowledge that the item concerned is an infringing copy (s23(2) of the Act).

Indirect infringement is committed by allowing a place of public entertainment to be used for the public performance of a protected literary or musical work in circumstances where such public performance is itself an infringement, with the knowledge that such public performance is an infringement (s23(3) of the Act).

Any fair dealing with a literary, musical, or artistic work, or with a broadcast or a published edition, does not infringe that copyright when it is -

• for purposes of research or private study by, or the personal private use of, the person using the work (s12(1)(a) of the Act).
• for purposes of criticism or review of that work or another work (s12(1)(b) of the Act).
• for purposes of reporting current events –

• for purposes of judicial proceedings or reporting on judicial proceedings (s12(2) of the Act).
• for purposes of quoting from the work (s12(3) of the Act ).
• for purposes of illustration for teaching (s12(4) of the Act ).

There is no definition of fair dealing in the Act, and English case law is just as unhelpful as fair dealing is decided on a case-by-case basis. Therefore, we need to look at the American approach. s107 of the United States’ Copyright Act lists a set of criteria to be taken into account when assessing fair use of a work:

• the purpose and character of the use;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used;
• the effect upon the copyright holder’s potential market.

These criteria have also been used in Australia with the addition of a fifth criterion – whether the work can be obtained within a reasonable time at a normal commercial price.

There should however be a balance maintained between the interests of the author or copyright holder to inhibit reproductions of his work and the rights of the public to use the works for the purposes specified.

• delictual damages
• reasonable royalty
• interdict
• delivery up of infringing copies or plates
• additional damages
• Anton Piller orders
• criminal law provision
• other common law remedies

The Act allows for the following special remedies -

In order to circumvent the requirement for patrimonial loss in an action for infringement, the Act introduces a second remedy called "reasonable royalty". At the option of the plaintiff, an amount of damages may be calculated on the basis of a reasonable royalty which would have been payable under the circumstances by a licensee or sub-licensee in respect of the copyright concerned. The Act goes on to state that in calculating the reasonable royalty, the court must take into account in addition to all material considerations, the extent and nature of the infringement and the amount which could be payable to the owner in respect of the exercise of copyright by some other person. To base a claim on this remedy, the plaintiff must give notice in writing to any exclusive licensee or sublicensee of his intention to proceed in this way. There is no requirement for fault in a claim for a reasonable royalty. In Metro Goldwyn Meyer Inc & others v Ackerman & another 558 JOC (SEC), [1996] 1 All SA 584 (SE), the court held that when determining a reasonable royalty, the court exercises a value judgment. In exercising such judgment the court felt it necessary to assess the nature and extent of the infringement as well as the amount that the copyright holder usually charged for use of the copyright.

This remedy allows the court to demand that the infringing copies or plates (used in the copying process) be delivered to the plaintiff. One may sue for damages along with this remedy.

These damages are additional to the damages claimed by the plaintiff. These damages are in the nature of penal or exemplary damages. The court takes cognisance of all relevant factors including:

• the flagrancy of the infringement;
• any benefit shown to have accrued to the defendant by reason of the infringement and whether the court is satisfied that effective relief would not otherwise be available to the plaintiff. The amount is purely within the court’s discretion and is likely to be fixed more easily in some cases over others.

In summation, the Copyright Act provides clients with a myriad of different statutory protection options for intellectual property which might be in the process of being infringed. Many clients place significant value to the copyright owned by them and will in many instances be left withno option but to use the provisions of the Copyright Act to dissuade parties from infringing their copyright.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.