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Louis-THE-lawyer's COPYRIGHT SERIES: inset #3 Infringements and Remedies

 

Photo by Markus Winkler on Unsplash

 

Inset #3 Infringements and Remedies

PROTECTION

The primary protection afforded the holder of the copyright is found in the Copyright Act, Act 78 of 1978 as amended (see my 1st insert)(‘Act’). This protection is extended to foreign trade marks as South Africa is a signatory to the Berne Convention and the World Trade Organization (‘WTO’) Agreement and the Agreement on Trade Related aspects of Intellectual Property Rights (‘TRIPS’). It means that South Africa must afford works emanating from countries that are listed In the schedules to these agreements, the same protection it affords South African works.   

 

WHAT CONSTITUTES AN INFRINGEMENT?

An infringement can be direct or indirect – the former occurs when a person, without the consent of the owner, does anything that is reserved for the owner. Such exploitation differs in each of the categories (See my 1st insert) and includes copying, reproducing, adapting, performing, etc. and may pertain to the entire work or a substantial part thereof.

Indirect infringement comprises e.g. the selling, letting, offering for sale and distributing infringing copies. 

 

WHEN IS DOES AN ACTION NOT CONSTITUTE AN INFRINGEMENT?

Fair use - Section 12, of the Act describes fair use of a copyrighted work for the following: Private or domestic use, including research or study; Criticism or review; News reporting

 

The following factors will have a bearing on assessing whether or not the use of the work amounts to fair use or not:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for, or value of, the copyrighted work

Licensing – actions taken by third party can be legitimized by the owner granting the third party user a licence

 

Finally it should be noted that it is possible that it is not an infringement when a substantially similar work is independently created.   

 

WHAT STATUTORY FINES APPLY?

The Copyright Act also makes provision for criminal penalties - a fine (a maximum of R5 000 per infringement) and/or imprisonment of up to 3 years for a first conviction. The maximum fine and/or imprisonment penalty for a second conviction is R10 000 and/or 5 years.

 

WHAT CAN A COPYRIGHT HOLDER DO/REMEDIES ARE AVAILABLE?

An injunction can be applied for – with this remedy the applicant seeks to prevent a person from doing a particular thing or demands a person to do a particular thing and it can be interim and/or final.

 

Damages can be applied for but will not be awarded if the alleged infringement is in fact innocent i.e. if the defendant can prove that he/she was not or could not have been aware of the copyright and/or conversely the applicant can prove that reasonable grounds existed for the defendant to suspect the steps taken by the defendant would amount to an infringement of the copyright. Hence my comments about an adequate copyright notice (See my 2nd insert)

 

Additional damages of a punitive and/or aggravated nature may be awarded in certain circumstances e.g. if the infringement is flagrant

 

An account of profits is an alternative remedy to damages. An account of profits provides for the applicant to recover a sum which represents that proportion of the respondent’s profits that was fairly attributable to the infringement of the applicant’s copyright.

 

PLAGIARISM

Here’s a useful explanation used by UNISA: Ethics and the ethical use of information is of critical importance and a failure to do so amounts to plagiarism and fraud which can result in expulsion and can impact on the students career.

 

Note that as illustrated below, the primary sphere of censure applicable to plagiarism is ethics and morals whereas a copyright infringement is subject to criminal sanction and it is only when the plagiarism amounts to a copyright infringement that a crime has been committed.

 

The differences between plagiarism and a copyright infringement can differ as well as overlap as the following will illustrate:

Plagiarism but not a copyright infringement: A student uses a minor extract from a publication without acknowledgement of the author. This may amount to plagiarism as the impression is created that the originator is the student but it may not amount to a copyright infringement as the extent of copying is minor and unlikely to have an adverse commercial impact on the author   

 

Copyright Infringement but not plagiarism: The extract used by the student nature is substantial and despite the acknowledgement of the author, the quantum of copying is so material that permission would be a prerequisite 

 

Both plagiarism and copyright infringement: The work copied by the student is verbatim and presented as the student’s own work without any acknowledgement of or permission the author 

 

More about transfer and licensing in the next insert

 

Aspects of the above is with acknowledgement of the following:

 https://copyrightalliance.org/education/copyright-law-explained/copyright-owners-rights/copyright-exclusive-rights/https://wikijuris.net/ausip/copyrightremedies/https://libguides.unisa.ac.za/research-support/plagiarism#:text D M Kisch/Kish IPhttps://irsc.libguides.com/copyright/fairuse; https://copyrightalliance.org/differences-copyright-infringement-plagiarism/

 

© ADV LOUIS NEL

LOUIS-THE-LAWYER

MAY 25 2024

 

Inset #2 - Rights & Notice

I addressed in my first article in this series certain aspects of copyright such as what it is, categories, duration and ownership. Copyright of course is a form of intellectual property, the others being trademarks, patents and trade secrets. 

 

What are the rights of the copyright owner (AKA the author or creator of the original creative material or work)? The rights in a nutshell comprise the exclusive right of the owner to use, duplicate and control the copying, distribution, adaption, display and performance thereof. Once a copyright expires, the copyrighted item becomes public domain.

 

This right pertains to the control of the following:

The reproduction of the work: Examples of reproduction are cutting and pasting a document or parts thereof into an e-mail, photocopying, scanning, loading movies and copying material from the internet. Failing to obtain the consent of or acknowledging the owner can amount to a copyright infringement. It is one of the key rights of the owner.

 

The making of derivative works: This pertains to the modification or adaptation of the work into new works. Examples are annotating, editing, translating, modifying or making other types of changes to the work and can apply to such activities as translating a book or transforming a novel or screenplay into a motion picture.

 

The distribution of the work: This includes e.g. sale or rental, whether it is done by someone who is not authorised or, if authorised, the copies distributed are unauthorized.  

 

The public performance of the work: This applies to (as defined) e.g. literary works, musical works and movies and pertains not only to the performance per se but also the manner of performance. The concept ‘public’ excludes a group of close friends and family.

 

The public display of the work: This applies to (as defined) e.g. literary works, musical works, pictorial and sculptural works. ‘Public’ – the public performance exclusion mentioned above applies but the following is an example of what amounts to an infringement i.e. the use of a photograph on a website      

 

How does the owner identify copyright and what is the purpose? This is done by the use of the word ‘Copyright’ and/or the symbol © together with the name of the owner and the date of creation. The purpose is to ‘warn’ third parties and is also of great value if the owner were to pursue infringement and endeavour to prove and claim damages. If such ‘warning’ is absent, the third party may claim/raise the defense that it was not aware or that there were grounds to presume that copyright vested in the work or phrase. It can also assist the owner who can argue that the onus rests with the third party.      

 

More about transfer, infringement, damages & fines in the next insert

 

Aspects of the above is with acknowledgement of the following:

 https://www.investopedia.com/terms/c/copyright.asphttps://study.com/academy/lesson/what-are-copyright-laws-definition-lesson-quiz.htmlD M Kisch/Kish IP & Wikipedia

 

Inset #1  - What is copyright?

DEFINITION

Copyright is a legal term used to describe the rights that creators have over their works that are eligible for copyright as defined in the Copyright Act.

 

COPYRIGHT ACT

Act 78 of 1978 as amended (‘Act’) regulates copyright in South Africa and protects the following works: literary works, musical works, artistic works, cinematograph film works, sound recordings, broadcasts, programme-carrying signals, published editions and computer programs.

 

PROTECTION IS AUTOMATIC

The creator doesn’t have to register copyright for it to be protected as is the case with patents and trademarks (other than acquired distinctiveness). Copyright  protection is automatic the minute that an original creative work takes a tangible form. Copyright applies to works that have some form of creativity embedded. As such a mere list of facts or data cannot be copyright protected. A grocery list for instance, is not a creative act and thus cannot be protected.

There are however certain requirements namely:

  • The work must be original and creative.
  • It must fall in one of the categories contained in the Act
  • It must be original and as a result of the author’s independent, labour skill and effort
  • It must be reduced to material form
  • The author must be a ‘qualified person’e. a natural person who is resident or domiciled in South Africa (‘SA’) or in any country where the Act applies OR a juristic person incorporated in SA or in any country where the Act applies

 

CATEGORIES AS PER THE ACT

  • ‘Literary works’include e.g. novels, poems, dramatic works, lectures, speeches, cinematography
  • ‘Artistic works’include e.g. paintings, sculptures, photographs
  • ‘Drawings’of a technical nature
  • Computer programs
  • Musical works
  • Sound recordings
  • Broadcasts

DURATION

  • Literary, artistic (excluding photographs) & musical works: life of author + 50 years from date of death
  • Computer programs, photographs and cinematography: 50 years from date it is lawfully made available to the public or 1stpublished, whichever is longest
  • Sound recordings and broadcasts: 50 years from the end of the year in which 1stbroadcast takes place
  • Published editions:  50 years from end of the year in which edition is 1stpublished

 

WHO IS THE OWNER?

The owner is the author of the work and the Act defines the author as follows:

  • Literary, musical & artistic work – the one who first makes or creates the work
  • Photograph – the one responsible for the composition
  • Cinematograph film or sound recording – the person who makes the arrangements
  • Broadcast – first broadcaster
  • Computer program – the person who controls the making
  • Where the above is generated by a computer - the person who makes the arrangements
  • Published edition – the publisher

 

There are important exceptions to the above

  • Literary & artistic work – where this has been done as part of the author’s employment with a newspaper or magazine then the proprietor thereof will be the owner
  • A party may commission someone to take a photograph, paint a portrait, make a cinematograph film or make a sound recording and if the party pays such person, the party will be the owner
  • Generally speaking the copyright in any work done by an employee in the course and scope of his/her employment is owned by the employer      

Note that any of the above can be altered by agreed contractual terms

 

Aspects of the above is with acknowledgement of the following:

 https://www.investopedia.com/terms/c/copyright.asphttps://study.com/academy/lesson/what-are-copyright-laws-definition-lesson-quiz.htmlD M Kisch/Kish IP & Wikipedia

 

© ADV LOUIS NEL

LOUIS-THE-LAWYER

APRIL 27 2024

DISCLAIMER - Each case depends on its own facts & merits - the above does not constitute advice - independent advice should be obtained in all instances

LOUIS’ LEGAL ADVICE CLUB (‘LAC’) – obtaining legal advice & guidance can be quite costly (See below*) hence my LAC via which you can obtain an hour’s legal advice for R750, 00 per month once you’ve joined AND the fee for additional hours is R1850 per hour! Furthermore you are dealing with a lawyer who has been in tourism since 1982!         

* The AVERAGE hourly rate is R2700 (https://www.myggsa.co.za/how-much-do-lawyers-charge-per-hour-in-south-africa/