s p o o r & f i s h e r the law of copyright and the making of multiple copies presented by:...

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THE LAW OF COPYRIGHTand the making of multiple

copies

Presented by:

Duncan MaguireSpoor & Fisher

www.spoor.com

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• Where does the law of Copyright fit in?

• What is Intellectual Property?

Intellectual Property and Copyright

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• Patents

• Registered designs

• Trade marks

• Copyright (the Cinderella of IP)

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• Yes, Cinderella has been invited to the ball

• Yes, it is a form of Intellectual Property

• Aimed at preventing unauthorised persons from copying certain types of works

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• The exclusive right to control the use of a work

• in all manners in which it can be exploited

• for personal gain or profit

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Works eligible for Copyright

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E R Literary Works

Copyright Act No.98 of 1978

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Artistic Works

Copyright Act No. 98 of 1978

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E RPublished editions

Copyright Act No.98 0f 1978

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• Copyright subsists automatically

• No formal steps, such as registration, are required to be taken in order to obtain

copyright in a work

• A particular work must, however, meet certain requirements in order to enjoy copyright

How does copyright come into existence?

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ORIGINALITY

● The work must be original

● The work must be the product of the creator’s own efforts and skills

● It should not be copied from other sources

Requirements for Copyright to exist

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MATERIAL FORM

• Copyright does not exist in an idea alone

• The idea must exist in a material form (reduced to paper, etc)


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QUALIFIED PERSON

• The creator or author of the work must be a citizen, resident, or must be domiciled in SA or a Berne convention

country

• or work first published in SA or in one of the Berne convention countries


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PUBLICATION

● If published, copies of the work must be issued to the public with the consent of the Copyright Owner in sufficient

quantities to satisfy the public’s reasonable requirements


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AUTHOR

• The author or creator of a work is the cornerstone of copyright law

• The author of a work is the person who is responsible for the creation of the material embodiment of the work


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Author (continued)

• Person first making or creating literary,musical or artistic work

• Publisher of a published edition

Requirements of Copyright to exist

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GENERAL RULECreator or author of the work is the owner

EXCEPTIONSEmployer - Work made during course and scope of employment under contract of employment

Commissioner – taking of a photograph / drawing of a portrait / the making of a cinematograph film/ the making of a sound recording / the making of a gravure

State - Work made under its direction or control

Ownership of Copyright

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• A generous period is afforded to the Copyright owner for controlling the use

of the work

• The terms for copyright for various types of works vary

• At expiry of the term of copyright in a work, the work falls into the public

domain

Duration of Copyright

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• Copyright has a definite life span

• Literary, Musical & Artistic works - 50 years from the end of the year in which the author dies or 50 years from year of exploitation

• Published editions – enjoy Copyright for a period for 50 years from the date on which they

are first published

Term of Copyright

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• “Restricted Acts” The Act details a list of acts or dealings in respect of each of the types or

categories of works, which are the monopoly of the copyright owner.

• The restricted acts differ from one type of work to another.

• In essence they amount to copying the work in one form or another and/or exploiting the

work commercially

Nature and Scope of Copyright

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● Reproducing the work in any manner or form

• Publishing the work in any manner or form

• Performing the work in public

• Making an adaptation of the work

• Letting or offering or exposing for hire by way of trade a certain work

Most common forms of Restricted Acts

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• The infringer must have performed a Restricted ActRestricted Act..

• There must be actual copyingactual copying of the work.

• Copyright is notnot infringed if a second work is created independently.

• Must be a copy of a substantial partsubstantial part of the original work.

Infringement of Copyright

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• Knowledge of the infringing nature is not a component of direct copyright infringement

(copying, reproduction, adaptation, etc)

• Guilty knowledge on the part of the person committing an act of indirect infringement is required (importation, distribution, arranging public performances, etc)

Infringement of Copyright

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• Letter of demand

• Prior convictions

• Warning

• Dealer – proving knowledge in trade

Establishing guilty knowledge

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Limitation of Monopoly - the “Three-Step Test”

• Article 9(2) of the Berne Convention (which is echoed in Article 13 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994), sets out 3 requirements to be present in order to prescribe limitations on the copyright owner’s exclusive right of reproduction:

– Special case– May not conflict with the normal exploitation of the

work– May not unreasonably prejudice the legitimate

interests of the author

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Limitation of Monopoly

● The balancing of rights

● The concept of fair dealing is a vague indefinite one which is contained in Section 12 of the Copyright Act. It is a question of fact to enable the Court to take all the circumstances into account

● Any fair dealing with a literary or artistic work or published edition does not infringe Copyright when it is:

● For purposes of research or private study by, or

the personal private use of, the person using the work; ● For the purposes of criticism or review of that work or of another work; or

● For the purposes of reporting current events: - In a newspaper, magazine or similar periodical; or

- By means of broadcasting or in a cinematograph film

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How much may I copy under fair dealing?

• It is a question of fact which will depend on the circumstances of each case

• The doctrine of fair dealing is neither qualified nor quantified

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Factors likely to be taken into account in determining whether the dealing was fair

• The purpose and character of the use

• The nature of the copyright-protected work

• The amount and substantiality of the portion used

• The effect upon the copyright owner’s potential market

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CIVIL PROCEEDINGS:

• Interdict

• Delivery up

• Damages (reasonable royalty)

• Anton Piller order

Remedies available

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Remedies available

CRIMINAL PROSECUTION:

● First conviction – fine of R5 000 or imprisonment of 3 (three) years, or both, for each infringing article

● Second conviction – fine of R10, 000 or imprisonment of 5 (five) years, or both, for each infringing article

● Forfeiture

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• The doctrine of fair dealing only applies to what a person may make for his or her own use

• Multiple copies fall outside the ambit of fair dealing

• The golden rule of fair dealing: “Take not from others to such an extent and in such a manner that you would be resentful if they so took from you” - Joseph McDonald

What about multiple copies

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What is DALRO?

• Dramatic, Artistic and Literary Rights Organisation

• It is a multi-purpose copyright lisensing society administering various forms of copyright on behalf of authors and publishers

• Main areas of copyright administration are: – Reprographic reproduction rights (photocopying

from published editions)– Public performance rights (stage rights)– Broadcast rights (radio and television)– Reproduction rights in works of visual art

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DALRO’s licensing of Reprographic Reproduction Rights

• The system of licensing in the South African legal framework enables voluntary collective licensing

• Transactional licensing

• Blanket licence (managing the risk)

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Transactional Licence

• One-off licence

• Reproduction-, item- and purpose-specific, e.g. the making of 355 copies of an article of 15 pages from the South African Journal of Economics for an Economics I module in a particular year

• Upfront application for authorisation against payment of a calculated reproduction right royalty

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Transactional Licence

● Applications for all forms of reproduction, or dissemination for any purpose, must be submitted to the Institution’s Copyright Officer

● No licensable reproduction, or other forms of licensable dissemination, may take place

before the necessary transactional licences have been obtained

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What is licensable?

● Course packs or readers, i.e. compilation works containing extracts from a variety of published sources,

distributed to students;

● Single Item Handouts, i.e. journal or magazine articles, or extracts from books, in excess of the reproduction quota determined by Regulation (Section 13 of the Copyright Act);

● Transient (for the duration of the course or module) electronic copies for printing out substantially identical paper copies, either by lecturers, or by the students themselves. A typical example of this is the posting of works on the Institution’s password-protected, secure internal networks.

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What is licensable? continued

● Placing of copies (single items and/or compilation works) in the library’s short loan section (i.e. reserve) for on-copying by students

● Alternative-format copies for the visually impaired

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Extent of Copying

● From a book, a maximum of one chapter if the book is divided into chapters, or approximately 10% if there is no chapter

division; ● From a journal or magazine, the complete article (one or more) required;

• From a collection of law reports or statutes, the complete report or statute (one or more) required;

• From an anthology or volume of short stories or poetry, the complete

short story or the complete poem

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How should Transactional Licences be applied for?

Lecturers may use the customary DALRO Application Form. Pertaining to the various forms of reproduction, or alternative forms of dissemination, the number of items to be applied for is as follows:

• For each item to be distributed to students as part of a course pack, or single handout, the number of course packs or single handouts to be made.

• For each item to be posted on the Institution’s password-protected, secure internal networks, the number of students enrolled for the specific course or module, in other words, the potential reproduction of the transient electronic copy to be made

• For each item to be placed on reserve in the library’s short loan section in copied form (not original published editions!) for possible (or recommended) on-copying by students, the number of students enrolled for the specific course or module, in other words, the potential reproduction of the reserve shelf copy(ies) to be placed.

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Information Required

In addition to the information relative to the reproduction (number of pages, and number of copies of those pages), the application to the Institution’s Copyright Officer should contain full bibliographical details:

• Title of the publication, i.e. book, journal, magazine etc.

• Title of the article, if reproduction is from a journal or magazine,

• ISBN of book, or ISSN of journal/magazine;

• Author(s)/Editor(s) of the book or author(s) of the article

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Blanket Licence

• Umbrella licence (managing the risk)

• Authorises reproduction in advance but requires retrospective reporting

• Payment of fixed fee per Full-time Equivalent Student (FTES)

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THANK YOU

ANY QUESTIONS?

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