Article written by Wade Jacobs and Marc Barros Gevers, checked by Paul-Michael Keichel
05 May 2021
Introduction
As a result of current technological advancements and the focus on mobile and cloud-based productivity, and messaging tools, now, more than ever, it is essential to have an understanding of the basic principles of copyright law, in order to avoid infringing it and contravention of the Copyright Act 98 of 1978 (“the Act”).[1]
What is Copyright?
Copyright, as a part of intellectual property law, can be defined as an exclusive right granted by law to the author/creator/designer over their original work, for a specified limited period (usually for a period of 50 years after the death of the author or 50 years after the publication of the work).[2] Copyright protects a number of categories of works, as defined in the Act, which includes, amongst other things, artistic, musical, and literary works, cinematograph films, sound recordings, programme broadcasts, and computer programs. It is important to note that one work can incorporate a number of different intellectual property rights, such as copyright and patent/design rights, or even multiple copyrights subsisting in one work.
How Does Copyright Apply?
In order for copyright to subsist in a work, it is a requirement that the work is considered as “original”. It is important to clarify that this does not require the work to be completely novel. Rather, the requirement is that the work must have involved an original and substantial degree of skill and effort in its creation and not be copied from another work.[3]
In terms of the Act, it is not necessary for copyright to be registered. However, this may be subject to other legislation and common law requirements, rights, and obligations.
In terms of the Act, a work exists, for purposes of copyright to subsist in it, when that work is ‘fixated’, meaning that it is reduced to a material form (e.g. written down, recorded, or broadcasted).
When does Infringement Occur?
Infringement of copyright occurs where the copyrighted work is copied and/or reproduced. This varies for the varying types of work which can be copyrighted and can include a copy (written or digital) and a recording of an original recording/broadcast.
Reproduction is one of the most everyday forms of copyright infringement, where people find themselves reproducing original work that is copyright-protected. This mainly occurs with literary works like textbooks, reports, lectures, and speeches, but also artistic works like drawings and photographs.
Reproduction occurs when an additional copy is made of original work, and this copy shares an objective similarity and subjective causal connection with the original work. For example, where a copy of a digital textbook is shared with or between students and educators, either partly or wholly, it is likely that copyright subsists in the content and composition of that textbook. If a copy is made of original work or a substantial portion thereof, this will most likely constitute copyright infringement. It should be noted that the storing of a softcopy version of material or textbooks on a computer, and printing a physical copy thereof, constitutes two separate acts of reproduction.
However, it is important to note that while copying and reproduction can constitute an infringement of copyright, not every infringement is a contravention of the Act.
There are exceptions.
The Act provides for exceptions to copyright infringement. In specific circumstances, protected work can be reproduced, without the need to seek or obtain permission from the copyright holder. This is referred to as ‘fair dealing’.
Section 12 of the Act allows certain acts of reproduction for research or private study, personal or private use, to criticise or review, as well as for judicial proceedings or a report of judicial proceedings.
This section permits one to quote or illustrate a fair portion of original work for teaching purposes, for example in a slide presentation. However, if you were to circulate these slides, you would need to clear copyright for those copyrighted works or exclude them entirely before circulating the slides.
There is no prescribed amount of copyright material usage that is deemed to be fair dealing, but it is preferable to only use one item/portion from a copyrighted work.
It is necessary, however, to distinguish ‘fair dealing’ from ‘fair use’. The fair use provision is an extension of the existing fair dealing right. Both fair use and fair dealing apply the test of what is fair, but, fair use expands the number of purposes for which an original work can be utilised.
When the Act was drafted, the framers could not have envisaged the extent to which technological and online reliance would have become a commonplace means of education, working, and leisure, nor could they predict the increased reliance thereon as a result of the current COVID-19 pandemic.
The fair use principle reassures a user of copyrighted work, such as a developer of online education tools, that their use can be defended from a court challenge as long as this fair use meets the fairness test.
Relaxation of licenses
Many publishers are temporarily relaxing their copyright license terms to assist people in discharging their duties during the pandemic.
These indulgences have allowed people to upload recordings of licensed material for non-commercial purposes, provided that such person attributes the original work to the copyright holder and removes the licensed material within a reasonable time frame.
Conclusion
It is the responsibility of all people in this digital age to have a basic understanding of our copyright laws. But, if they are uncertain about the legal position, they need to approach an intellectual property expert to reduce their risk of a potential claim of copyright infringement. This has become ever more important as life shifts at a rapid pace towards a digital environment that remains foreign to many people and industries.
There is no guarantee that despite the world being forced into digital living (sometimes by no choice of their own and with limited resources) our courts will adopt a lenient approach to copyright infringement. Please see our other articles on copyright available on our website, and should you require any specific legal assistance in copyright law please feel free to contact either of the writers hereof.
Value
Understanding the basics of copyright law and infringement of copyright
[1] South Africa is also a signatory to and guided by, a number of international treaties such as the Berne Convention, 1928, and the TRIPS Agreement, 1994.
[2] Section 3(2) of the Act.
[3] See Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd. 2006 (4) SA 458 (SCA)
