INPL7322 Copyright Law Course Notes PDF

INPL7322 Cailin Peek [email protected] Office Hours: Mon – Fri 08:00 to 17:00 Assessments ICE 10% – Four tasks must be completed. – Due date will be communicated. Test 30% – LU 1 – Written on campus. – Check PAS for dates and details (19 August Subject to change). Assignment 25% – LU...

INPL7322 Cailin Peek [email protected] Office Hours: Mon – Fri 08:00 to 17:00 Assessments ICE 10% – Four tasks must be completed. – Due date will be communicated. Test 30% – LU 1 – Written on campus. – Check PAS for dates and details (19 August Subject to change). Assignment 25% – LU 2, 3, 4 and 5 – Check PAS for dates and details (15 October Subject to change). Exam 35% – All LUs. – Written on campus/closed book. – Check PAS for dates and details(21 November Subject to change). Using AI Copyright as a “concept” Intellectual property(IP) – products of the human mind. Copyright is the only form of IP protected by statute which DOES NOT have to be registered. Copyright protection occurs automatically if the work meets the requirements for copyright protection. Owner of the right is given: Exclusive rights For a limited duration - The copyright of literacy works lasts for 50 years after death of the author, the copyright of computer programs lasts for 50 years after the first copies were made available to the public, for sound recordings, the copyright lasts for 50 years from the day the work was first broadcast. Rights allow the owner to prevent or authorise the use of the work. A restricted act is usually the exploitation for commercial use. Purpose of the right is to afford the owner the opportunity to profit from the protected work. Rationale is that it promotes others to create and furthers innovation. Legislative Framework Internationally regulated by the Berne Convention. Copyright is subject to and regulated by the Copyright Act 98 of 1978. The Copyright Act protects works which are tangible, digital and electronic. The Copyright Act has been amended by the Intellectual Property Laws Amendment Act 28 of 2013 – Inclusion of TK/TCE’s. The Copyright Act is preceded by various copyright legislation dating back to 1916. If a work was created before 1978 then the applicable legislation at the time will be relevant to that work. National Treatment and International Treaties The Copyright Act is only applicable in South Africa. National Treatment – the owner of any foreign work will be afforded protection in South Africa, under the South African legislation. South African works will also be protected in foreign territories but by the relevant legislation in that country. Based on the idea of reciprocal rights. National treatment is regulated by the Berne Convention. National treatment is not regulated in detail in the Copyright Act but in the Regulations to that Act. Berne Convention renders foreign nationals as “qualified” person under the South African Act. If a foreign national publishes work in a Berne Convention Country, then that work will automatically be protected from that date in South Africa. South African nationals are afforded the same protection in Berne Convention countries. Eligibility for Copyright – If a “work” falls into one of the categories set out in S 2(1) AND: – S 2(2)(a): sufficient effort, skill has been expended on making the work or to give it a new and original character; – S 2(2)(b): the work has been written down, recorded or otherwise reduced to material form. The general rule – work is classified as one work. Some works such as songs will be made up of separate works. Protection is afforded to work when: It is of a sufficient standard to justify it being made exclusive. Restricting its use will not unduly restrict others. The test is an objective test – is the material of sufficient substance, is it not too trivial to merit protection. Step 1 - sufficient substance Step 2 -too common to be protected. Classes of “works” –The classes of copyrightable works S 2 of the CRA: Literary works Musical works Artistic works Cinematograph films Sound recordings Broadcasts Computer programs Literary Works a) Irrespective of the quality or mode, the following is a literary work – b) novels, stories and poetic works; c) dramatic works, stage directions, cinematograph films scenarios and broadcasting scripts; d) textbooks, treaties, histories, biographies, essays and articles; e) encyclopaedias and dictionaries; f) letters, reports and memoranda; g) lectures, speeches and sermons; h) tables and compilations, including tables and compilations of data stored or embodied in a computer or medium used in conjunction with a computer but shall not include a computer program. * Databases can include electronic version but are separate to computer programs. Musical Works This is a work which consists of music. It excludes – words, actions etc. It is the melody generally performed by musical instruments. Fixed in a medium – music notation or recording. Work must be audible by the ear. Music can be accompanied by lyrics BUT these are NOT part of the musical work. Lyrics may be a separate work – literary work.  Artistic Works Section 1(1) of the Copyright Act: a) paintings, sculptures, drawings, engravings and photographs; b) Works of architecture, being either buildings or models of buildings; c) Works of craftmanship not falling within either paragraph (a) or (b). The definition of artistic works is broad and includes works which are not just “art”. Buildings and 3 dimensional creations are also artistic works. If a work can be classified as an “artistic work” it will be copyrightable regardless of the artistic quality of the work.  Cinematograph Film – This is a work which is anything : fixed or stored on film; any other material of data, signals or a sequence of images capable when used in conjunction with any other mechanical, electronic or other device, of being seen as a moving picture and of reproduction; includes the sounds embodied in a sound-track associated with the film; BUT does not include a computer program. Not only limited to “movies”. Can be any thing which is recorded. This work can encompass other types of work - literary works (script) musical work (song/melody) artistic work (painting) Sound Recordings Any fixation or storage of: Sounds Data Signals representing sounds Capable of being reproduced. Does not include a soundtrack associated with a cinematograph film. Sound recording is the ACTUAL recording. The recording must be made on a tape or other recording medium of sounds, data or signals representing sounds. Sound recordings are NOT limited to: Music and songs. Sound recordings INCLUDE: Voice notes Sound recordings on Dictaphones/recorders A sound recording is different to a musical work. A musical work may form part of a sound recording. Broadcasts & Programme Carrying Signals Broadcasts Programme Carrying Signals Electromagnetic waves of frequencies. This is a signal embodying program Intended for reception by the public or sections of which is emitted and passed through the public. a satellite. This work is a telecommunication service. It is the “down-leg” of a It is the transmission of: transmission. Sounds Images It can also consist of various other Signs works. Signals A broadcast is the signal which carries the visuals or audible content issued by a broadcaster’s transmitter. It can constitute a number of works such as sound recordings, musical works and artistic works. Published Editions This is the first print by whatever process of a literary or musical work. It is a work separate from the literary work or musical work itself. It is limited to the specific typographical arrangement (layout/style) of the pre-existing content. It is the edited or formatted form of a work. Printed layout of the work that is protected. The intellectual content of the work is protected by virtue of being another class of “work”. Works in the public domain which are not protected by copyright as a literary or musical work may still be subject to copyright protection as Computer Programs This work is a: set of instructions; fixed or stored in any manner; which when used directly or indirectly in a computer; directs it’s operation to bring about a result. Computer programs are expressed in a specific language; Java C# PHP The language is compiled in such a way that it creates commands which are then read by a computer to reach a specific outcome. It is also known as source code. The source code is the “set of instructions”. The copyright protects the actual source code. The copyright protection of a computer program is only given to the final product which can actually direct a computer to reach an outcome. Must be capable of driving a computer. Importance of Classification Classification of a work will determine the rights that the owner will hold. It determines the extent of protection that the work is afforded. Incorrect classification may lead to unfair exploitation of a work OR unfair limitation on the use of the work. Different principles apply to different works such as – length of protection. Fair use of a work. If a work does not fit into a category then it will not be protected under copyright law. In a copyright case – there is a duty on the claimant to identify the work/s from the outset. Copyright Requirements – No formalities required. – Only form of intellectual property which does not need registration. – Copyright law does not make provisions for registration(except cinematograph films). – Follows on from the provisions of the Berne Convention. – Some countries may have a registration process – use to prove that there is copyright. – Copyright is automatic if the requirements set out in the Act are satisfied. Originality – The work must be original but does not need to be inventive or new. – Must be created by the author’s skill and effort – “sweat of the brow”. – Originality is a factual enquiry – court must decide on the amount of skill if there is a dispute. – If other works are used the author may only lay claim to the “new” work, they have created. – The use of other work to create a new work must be authorised. – Work created using existing works is called a derivative work. – Waylite Diaries CC v First National Bank Ltd 1993 (2) SA 128 (W): – The authors work – skill, knowledge and labour must create a result which is not common. – Must have a quality of individuality. – Does not need to be intellectual novel or innovative. – Must be distinguishable from the common place. – Must be apparent from the work that the author has done something to it. – Time and effort is a material factor BUT the most important aspect is if the effort has produced something original. – Klep Valves (Pty) Ltd v Saunders Valve Company Ltd 1987 (2) SA 1 (A): – The work must not be copied from another. – Originality refers to the original skill and labour. – The work must be distinguished from pre-existing works and the author’s contribution must be clear. Material Form Any work produced MUST be reduced to a material form. Copyright protection will not be given to thoughts and ideas unless recorded. Section 2(2) of the Copyright Act – except for 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 Otherwise reduced to material form. Copyright does not extend to concepts. Copyright is only applicable where the thoughts and concepts have formed or manifested. “There is no copyright in an idea”. Duration of Protection Literary, musical and artistic – excluding photographs: 50 years starting at the end of the year of the author’s death. Cinematograph films, photographs and computer programs: 50 years starting from the end of year in which the works were made available to the public with the consent of the owner OR first published. Sound recordings: 50 years starting at the end of the year it is first published. Broadcasts: 50 years starting at the end of the year in which the broadcast first takes place. Programme-carrying signals: 50 years starting at the end of the year that the signal is first emitted to a satellite. Published editions: 50 years starting from the end of the year that the edition is first published. LU 1 – Theme 2 Ownership and Transmission of Copyright Ownership The general rule is that the author of a work is the FIRST owner of any copyright. There are exceptions to this rule. Ownership of copyright does not affect the authorship. Where an exception exists, the ownership will vest in the designated person first. The author will never be the owner when there is an exception. Types of exceptions: Works intended for publication. Specific works created for payment. Employer/Employee. Vesting of the ownership of copyright. The State and International organisations. Works Intended for Publication Any person who is the author of a work and during the course of their employment with a magazine, newspaper creates a work will not be the owner of the copyright. The work must be made with the intention to be published and within the scope of the employment. The proprietor will be the owner of the copyright in so far as it relates to the publication of the work. The author remains the owner of the copyright which does not involve publication of the work. This exception is only applicable to literary and artistic works. This exception does not apply to freelance authors or independent contractors. The exception is also only applicable to employers who are media entities. The “employee” remains the author while the “employer” is the owner of the copyright. The employer will only own the copyright so far as the right is being exercised for publication. Works Created for Payment If a person commissions a work and pays for the creation of that work, that person will be the owner of the copyright. Only certain works can be commissioned: –Taking of a photograph –A painting or drawing of a portrait –Making of a gravure –Making of a cinematograph film –Making of a sound recording *NB – it does not include all artistic works!!!  Employment – When an author is employed and creates a work, the ownership will vest with the employer. – The author can be an employee or under a contract of apprenticeship and/or service. – This exception is a blanket exception to all types of works. – Independent contractors fall outside of this scope. – For this exception to apply: – There must be a contract of service/apprenticeship – oral or in writing. – The work must be created in the course of the employment. – Must be created within the scope of the employment. – King v South African Weather Service 2009 (3) SA 13 (SCA) – – “In the course of employment” is a standard concept. – Practical and common-sense approach must be used to determine the course/scope. – Relies on more than just the employment contract. Author’s Moral Rights Regardless of assignment, an author will always have moral rights in their work. Moral rights are regulated by the Copyright Act. 1) The right of paternity This right allows the author to claim authorship of the work. The author can claim entitlement and request that their name be attributed to the work. Occurs when an author is not named or where an incorrect author is named. 2) The right of integrity This right allows the author to object to any distortion, mutilation or modification of their work. The changes must be prejudicial to the author’s reputation and honour. The exception to this rule is when a work needs to be modified on technical grounds or for commercial exploitation. The exception is only applicable to cinematograph films, television broadcast or a computer program.  Assignment of Copyright – The CRA classifies Copyright as immoveable property. – Three modes of transmission: – Assignment – Testamentary disposition – Operation of law – Copyright is a “bundle of rights”, in assignment and testamentary disposition, all or part of the exclusive rights may be passed. – Copyright owners may assign rights in parts – divisible: – Certain uses/rights – Specific jurisdictions – Specific period of time – Assignment passes the ownership of the rights to the assignee and therefore the assignee may sue if their bundle of rights is infringed. – The assignor no longer exercises the rights which are assigned.  –Galago Publishers (Pty) Ltd and Case Law Another v Erasmus: –Where the author of a copyrightable work, assigns their rights they are placed in the same position as any other third party. –The author will no longer have any rights to use the work. –Use of the work by the assignor without the permission of the assignee will be an infringement.  Copyright Licences – Three types of licences can be granted for copyright: – Exclusive licences – Non-exclusive licences – Sole licences – Granting of a licence does not transfer ownership (like assignment). – A licence is the granting of permission to use the work or exercise all/some of the rights. – A license allows the licensee to perform certain acts which would normally constitute an infringement. – Licences will generally allow the licensee to sub-licence the rights that they hold to another party. – Licences may be granted in respect of all of the rights or part of the bundle of rights. Exclusive Licence – An exclusive licence permits the licensee to the exclusion of the licensor and all other to perform the rights in the licence. – The effects of assignment and an exclusive licence are similar but not the same, the author retains ownership of the work. – An exclusive licence gives the licensee the ability to sue for copyright infringement without involving the owner of the copyright in the matter. – If a licensee under an exclusive licence wishes to sue a third party for infringement, they must notify the owner of the copyright, in writing of their intention. – This process allows the owner to claim damages or royalties from the third party due to the infringement. Non-Exclusive Licences No formal requirements exist for the granting of a non- exclusive licence. These licences may be agreed on orally, in writing, tacitly or inferred. The licensor may grant a number of rights to several persons at the same time and for the same uses. A non-exclusive licence may be revoked at any time and the law of contract will be applicable. Sole Licence –Sole licences allow the licensee AND the Licensor the right to perform acts agreed upon in terms of the licence. –Differs from an exclusive licence as the licensor may exercise their rights. –Sole licences are informal and may be agreed upon in a number of ways. Needle Time Licences Regulated by S 9(d) and (e) – applicable to the author/owner of a second recording. Authorises and controls the use of a sound recording in broadcasts, public performances of the music and other material carried by the record. They are used in the regulating the publication/broadcasting of music. Recorded music contains a number of owners and the licences are used to ensure all owners receive royalties: Performers Record labels Composers and songwriters Administered by collecting societies. A person who wishes to use the recording publicly may purchase a licence from the collecting society who will then pay the parties involved in the recording. LU 1 – Theme 3 Infringement of Copyright Direct Infringement Copyright is infringed by any person who is not the owner of the copyright. This person must perform a restricted act in terms of that work. The performance must be without permission/licence etc. The act must be done without any authorisation or permission. The mere use of copyright will not satisfy the requirement for copyright infringement. Section 23(1) of the Copyright Act regulates direct infringement. To ascertain if there has been an infringement, the act must be a restricted one. Copyright can be infringed by an act involving the whole work OR a substantial part of that work. The test for substantial will be the “quality of the work, not the quantity”.  –Galago Publishers (Pty) Ltd and Another v Erasmus 1981 (1) SA 276 (A) Case Law – Established a two-step test when considering reproduction of a work as an infringement. 1. Sufficient objective similarities between the two works or a substantial part of the original work that the infringing work will be identifiable as a reproduction. 2. Original work was the source of the alleged infringing copy. There must be a causal connection between the two works. The copyright owner claiming infringement must establish both of the above points. The claimant(copyright owner) must prove that the work has been copied.  – Fax Directories (Pty) Ltd v SA Fax listings CC 1990 (2) SA 164 (D) Case Law The court dealt with the idea of “copy traps”. Copyright owners may insert copyright traps into their work to ease the burden of proving reproduction. Copyright traps aid in showing the causal connection between the two pieces. The copies do not need to be in the same medium for it to satisfy reproduction. The claimant does not need to prove that the infringer knew that they were “copying” and that it was unlawful. Even if the production/copying is done in good faith, it will constitute an infringement. The person “copying” and any other person who assisted the “copying” will be liable.  – Jacana Education (Pty) Ltd v Frandsen Publishers (Pty) Ltd: Case Law – JE created maps depicting the Kruger National Park which contained: – Markings for the park perimeter, roads, gates, speed limits, rivers and camps. – FP created a competing map of the Kruger National Park which included the information contained in the maps created by JE with additional information. – JE sued FP for copyright infringement. – The court held that neither map was original and that both had been created using existing material. – The parts which distinguished each map from the other were original enough not to constitute an infringement.  – Bosal Afrika (Pty) Ltd v Grapnel (Pty) Ltd and Another: Case Law – This case dealt with infringement by adaptation. – BA created a numbering system used to store and locate motor vehicle parts. – BA’s system consisted of a 6 digit code which would correspond to a part and where it was stored in the warehouse. – G used the numbering system created by BA. – Instead of using identical codes, G adapted the codes by deducting the BA code from 999 999. – The court held that the infringement was not a copy BUT an adaptation of the copyrighted work. – Without authorisation, G had infringed on BA’s copyright. Indirect Infringement Indirect infringement/secondary infringement occurs when a person “deals” in infringing articles. Not a requirement that they have reproduced the infringing work themselves. Person must have “guilty knowledge” – must be aware that the conduct is infringing on copyright and that the articles are “infringing copies”. Claimant will usually serve a cease-and-desist letter on the person. If conduct continues then the cease-and-desist letter will serve of proof that the person was aware that the articles were infringing articles.  Forms of Indirect Infringement 1. Dealing in infringing articles for the purpose of trade: Any person who deals in infringing articles for their own financial gain. If articles are imported into South Africa, it must be established if they are for private use. If yes, then it will not amount to secondary infringement. 2. Public performances: When a person makes a place available for an infringing performance to be viewed by the public. Person must be aware or have reasonable ground for suspecting that the performance is infringing on copyright. The copyright Act places a duty on operators of venues to ensure the works shown are not infringing. 3. Parallel importation/grey goods: The article itself is not a copy/reproduction. The article is imported into a country without the permission of the copyright owner. Usually enforced by exclusive distributors.  – Frank & Hirsch (Pty) Ltd v Roopanand Brothers (Pty) Ltd: Case Law – Grey goods are items which are imported through unofficial/unathorised channels. – FH was had an exclusive distribution deal to import TDK video and cassettes into South Africa from the manufacturer in Japan. – RB began importing the same TDK tapes. – RB purchased original tapes but bought them from a supplier with distribution rights in Singapore. – Grey goods are not unlawful BUT the importation of grey goods which embody a copyright will be an indirect infringement of the right. – The casing and marketing material was copyright protected. – The owner of the copyright had assigned their rights to FH in South Africa. – RB was not authorised to use the copyright and therefore infringed on FH’s copyright. Criminal Infringement – S 27 of the CRA makes certain infringements criminal offences (pg 43 – 44). – The state must prove that there was guilty knowledge on behalf of the accused. – A person will be guilty of an offence if they contravene section 27(1) – (5). – The sentence for such an offence is as follows: – First offence – R5000 or imprisonment not exceeding 3 years. – Second offence – R10000 or imprisonment not exceeding 5 years. – The complainant (copyright owner) must lay a complaint at a police station. – The investigations will be completed by the commercial crimes' unit. – The Prosecution will decide whether to prosecute the case. – Evidence will then be lead in court to prove the case. Copyright Infringement vs Plagiarism Plagiarism and copyright infringement are NOT the same thing. Plagiarism is taking someone else’s work and passing it off as your own. Plagiarism is not a legal principle and therefore extends beyond the scope of copyright. Plagiarism can be extended to ideas where copyright will only exist if the work is in a material form. Plagiarism can occur when works are not copyright protected and in the public domain. Plagiarism is a serious academic and ethical offence. A person who plagiarizes can be given sanctions, have their academic qualifications taken away and employment terminated. Certain copyright infringements can also constitute plagiarism. Statutory Defences to Infringement –Statutory defences are also referred to as exemptions from copyright infringement. –In order to rely on a statutory defence, the defendant must agree that the work is original and was used without authorisation. –The defences are work-specific. –Fair dealing: – Where a work is used for the purpose of research or private study, personal or private use. – Where the work is used to criticise or review that work or the work of another. – Where the work is used to report on current events.  Proving a copyright infringement claim 1)Determine if the work is a Yes 2)Identify the type of work work which can be copyright 3)Determine if the protected requirements have been NO met: 6)Does copyright still 1) Originality – sweat of subsist in the work: the brow If it is not a “work” then no 1)Duration of protection 2) Material form claim for infringement. for that type of work 4)Determine who the author is. 8)Has the act been performed 1) Is the author a without the permission of the 7)Depending on the type of qualified person? owner? work, has an infringement 2) Was the work first 1)Licence/sublicence taken place? published in SA or a 1) Direct infringement – berne convention Yes restricted act performed country? 2) Indirect infringement – unauthorised dealing or Cause of action will exist place of public 5)Who is the owner of the performance work?  Claimant has Defences that may be used when it is not shown alleged that there is copyright that work is original infringement. Defendant can show that they had Claim of Claimant has authority(direct or Copyright not proved that indirect) to use the infringement he is the owner work of the right Defendant can Claimant has show that not proved that substantial part copyright still of the work was subsists in the not used. work  Fair dealing – use Statutory defences once it has been proved was for the purpose that there has been an infringement of research, private study, personal/private use Fair dealing – the use was for Reverse Claimant has criticism or review engineering. proven that there of the work or is a copyright another work infringement Source of the material must be mentioned. Name of author if it appears on the work. Fair dealing of a cinematograph film, Fair dealing – use was sound recording, or for reporting of current computer program events in a newspaper, Copyright is not magazine, periodical or does NOT include – infringed by use in by means of a research, private judicial proceedings. cinematograph film or study or personal, broadcast. private use. Remedies available for copyright Damages infringement Final interdict – applicant has established a clear Once copyright right, respondent has claim has been infringed that right, proven and no Interdict there is an absence of defences similar protection by accepted. any other remedy. Alt. to damages – Delivery-up of compensation infringing calculated on a copies. reasonable royalty LU 1 – Theme 4 The impact of the Constitution on copyright  – Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996: Case Law – In the First Certificate case the Constitutional Court was tasked with determining the validity of the Constitution. – A point was raised that the Constitution did not protect intellectual property or mineral rights. – The CC held that it was a universally accepted practice to protect such rights under a general property provision. – In terms of the South African Constitution, the court held that section 25 was sufficient in protecting the rights. – A failure to mention the rights explicitly does not exclude the rights from protection. – If the law recognises a particular interest as property, it will be protected. – IP rights are recognised as property in terms of private law if they meet the statutory requirements for their specific class.  – Laugh it Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark International: Case Law – As established in the First Certificate case, IP rights are not protected in the Constitution under a separate clause. – The Laugh it off case dealt with the fact that incorporeal and intangible property if recognized in private law will be protected in terms of section 25 of the Constitution. – The court also confirmed that IP did not have a special status warranting it special individualised protection above other property, – IP rights like other property rights are not absolute and may be limited. – There must always be a balance between the competing rights especially when dealing with freedom of expression and IP/Trademarks. – The judgment is one which recognizes IP as having equal status to the rights contained in the Bill of Rights. Constitutional Rights and IP Rights – Trade Marks: – Court recognised that trade marks are consider constitutional property. – The challenge was balancing freedom of expression and S 34(1)(c) of the Trade Marks Act. In this instance freedom of expression was favoured. – Copyright: – If parody/freedom of expression was relied on as a defence for infringement, the court would have to view the Copyright Act in line with the provision of the Constitution. – Patents: – One must ascertain if the legislation and protection is in line with the Constitution. United Nations Committee on Economic, Social and Cultural Rights - CESCR – Draws a distinction between IP rights and human rights – IP rights are for a limited time and can be revoked, licensed or assigned to someone else except for moral rights to IP. – Human rights are timeless and can not be transferred to another. – Moral and material interests in IP must be used as the minimum level of protection afforded by countries. – Material interest must encompass the narrow economic right to just renumeration. – Protecting authors’ rights are important because of the personal link between the author and the creation. – Protecting basic material rights protects the authors’ need for an adequate standard of living. – The approach follows that of the German Federal Court – asking if the right in conflict serves the fundamental constitutional purpose of providing an individual with personal liberty, space to take responsibility for their own affairs with regards to patrimony. – Any other rights are afforded less protection. – Essentially, IP rights should be protected in so far as the aim to further the human rights of a country.  Compelling Public Interest South African law is generally in line with the CESCR. Expropriation and deprivation are only allowed under strict requirements. This approach protects the moral authors’ rights and basic material rights. There must be compelling public interest for an IP right to be taken away. Laugh it off case – limiting certain IP rights to protect freedom of expression.