INTELLECTUAL PROPERTY LAW
NICOLA IRVING
NICOLA IRVING©
IGZ 320
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DISCLAIMER
Please take note of the fact that these notes may not be comprehensive of the
material required to be covered for the module and contained in the prescribed
syllabus as reflected in the study guide. There may be errors; omissions or
shortcomings, accordingly, use these notes at your own discretion.
ACKNOWLEDGEMENT OF SOURCES:
These notes were composed based on:
o Mr Van Straaten, Professor Munyai & Ms le Roux:
• Lecturers in the Department of Private Law, University of Pretoria:
IGZ 320 (Intellectual Property Law) 2019, Slides and class notes
o IGZ 320: Study Guide (2019) (University of Pretoria)
o Dean & Dyer Introduction to Intellectual Property Law (2014)
PLEASE NOTE:
These notes shall not be shared without the express consent of the author(s)
thereof.
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STUDY UNIT 1: INTRODUCTION
Name and distinguish the various sections of the intellectual property law:
o Intellectual property is that branch of the law concerned with protecting the
products and fruits of the human intellect and endeavour
➢ Primary intellectual property:
▪ Copyright
▪ Law of designs
▪ Image rights
▪ Law of trademarks
▪ Competition law
▪ Counterfeit goods
▪ Law of inventions/patents
➢ Secondary intellectual property:
▪ Plant breeders’ rights
▪ Traditional knowledge
▪ Performers’ rights
Explain the various explanations for the limitations on the duration of certain
intellectual property rights:
Explain whether intellectual property qualifies as ‘property’ in terms of section 25 of
the Constitution:
o It is generally accepted that IP falls within the ambit of ‘property’ as contemplated
in S 25(1) of the Constitution, which reads:
➢ “No one may be deprived of property, except in terms of the law of general
application and no law may permit arbitrary deprivation of property”
o Furthermore, S 25(4)(b) of the Constitution stipulates that for purposes of S 25,
property is not limited to land
➢ In the First Certification case, the Constitutional Court held that the concept
of ‘property’ used in a generic property clause is wide enough to include
rights and interests that require protection according to international human
rights standards
▪ Human rights were used to impose limits on IP rights (to protect
freedom of expression)
Explain the implication of the protection of intellectual property on the rights enshrined
in the Bill of Rights:
o S 16: Freedom of Expression
➢ The Laugh It Off case highlights the inherent tension between the
constitutionally protected right to freedom of expression and the property
right in a trademark
▪ The Constitutional Court confirmed that freedom of expression was
a more compelling public interest than the comparatively less
important property interest
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o The infringement of the property interest was not as severe as
the infringement of freedom of expression would have been if
the property right had been upheld
o Although IP are recognised and protected under the
constitutional property clause, they have no special status and
they are not immune to constitutional challenge
o IP rights are not absolute but may be limited like other property
rights
STUDY UNIT 2: COPYRIGHT
Define copyright:
o Copyright refers to a sub-set of intellectual property
➢ It grants the owner of the right exclusive statutory rights, for a limited
duration of time
➢ In the rendering or performance of certain dealings or acts in relation to
specified works
➢ Including the right to prevent others from performing those acts in relation
to the protected works that would amount to commercial exploitation
o Copyright protection in SA, as a party to the Berne Convention for the Protection
of Literary and Artistic Works = international legal copyright protection
➢ Core principle of ‘national treatment’ requires each member state to afford
the same copyright protection rights to foreign authors, as it does to authors
of its nationality
Explain the object of copyright, as a subjective right, with references to case law:
o Copyright is a right separate from that of the personality of the author
➢ An activity will attract copyright protection if it extends beyond the author’s
personality, by assuming an individual and independent character wherein
it is reduced to some outwardly perceptible form
➢ The activity will acquire an economic value and becomes in itself a suitable
object of legal protection under copyright law
▪ “When he who harbours an idea, by dint of his imagination, skill or
labour, or some or all of them, brings it into being in tactile, visible or
audible form, capable thereby of being communicated to others as a
meaningful conception or apprehension of his mind, a right or
property in that idea immediately comes into existence. The
proprietary interest in that object of knowledge is the ownership of it
and is called ‘copyright’.”
o Copyright usually denotes the right than an author vests in her own work
➢ BUT: Copyright affords the owner thereof certain exclusive rights in respect
of a work
▪ The sum of the exclusive rights of the owner constitutes the content
of the copyright in a work
o Exclusive control, use and adaptation
▪ The owner of the copyright will have a restricted monopoly in the
rendering or performance of certain specified acts
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o Determined with reference to the type of copyright work =
‘restricted acts’ or monopoly is for a limited duration
Critically discuss the maxim that: “There is no copyright in ideas, only in the expression
of ideas”:
o The second requirement for the subsistence of copyright in a work is that the work
must be reduced to a material form
➢ S 2(2) of the Copyright 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 material form’
o Copyright does not protect or vest in concepts, but rather in the physical or material
manifestation or embodiment of such elements, once they are created or come into
being (Galago Publishers (Pty) Ltd v Erasmus)
➢ Idea-expression dichotomy
▪ The concept that expressions are protected but not their underlying
ideas
Define and distinguish between the various categories of works which may be the
object of copyright:
o S 2(1) of the Copyright Act lists the various types of works eligible for copyright
➢ 9 specific types of works in which copyright can subsist:
▪ Literary works
▪ Musical works
▪ Artistic works
▪ Cinematograph films
▪ Sound recordings
▪ Broadcasts
▪ Programme-carrying signals
▪ Published editions
▪ Computer programmes
o Copyright can subsist in each of the abovementioned works provided they are
original and existing in material form (in conjunction with the other requirements for
subsistence of copyright)
➢ NB: Works must be properly classified because different principles may
apply to different types of works
▪ Therefore, correct classification of a work is essential to determine
the extent of protection and issues surrounding authorship and
ownership of copyright
Define fully and explain the following concepts:
Literary works:
➢ Irrespective of literary quality and in whatever mode or form expressed,
‘literary work’ includes:
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o Novels, stories and poetic works
o Dramatic works, stage directions, cinematograph film scenarios
and broadcasting scripts
o Textbooks, treatises, histories, bibliographies, essays and articles
o Encyclopaedias and dictionaries
o Letters, reports and memoranda
o Lectures, speeches and sermons
o Tables and compilations, including those embodied in a computer
or a medium used in conjunction with a computer, but shall not
include a computer programme
➢ Therefore, mere mundane combinations of words conveying the
outcome of intellectual activity may qualify as ‘literary work’
Musical works:
➢ A work consisting of music, exclusive of any words or action intended to
be sung, spoken or performed with the music
o i.e. The actual melody or music, generally performed by means
of musical instruments, that is capable of being fixed in some
medium like music notation or recording
▪ Therefore, the lyrics are not a musical work, but may
constitute a separate literary work
Computer programme:
➢ Means a set of instructions, fixed or stored in any manner, which when
used directly or indirectly in a computer, directs its operation to bring
about a result
o Expressed in artifiicial ‘languages’ designed to communicate
instructions to a machine
o Specifically excluded from the definition of ‘literary work’
▪ Illustrates the metamorphosis of literary works in the
developmental stage into computer programmes when the
stage is reached when the work is actually capable of
driving a computer
Artistic work:
➢ Irrespective of the artistic quality, an ‘artistic work’ encompasses the
subject-matter of:
o Paintings, sculptures, drawings, engravings and photographs
o Works of architecture
o Works of craftmanship
▪ 3D works are classifiable as artistic works e.g. Furniture,
machinery and kitchen appliances
Cinematograph film:
➢ Means any fixation or storage by any means whatsoever on film or any
other material of data, signals or a sequence of images capable, when
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used in conjunction with any other mechanical, electronic or other
device, of being seen as a moving picture and of reproduction, including
the sounds embodied in a sound-track associated with the film
o BUT: Not including a computer programme
Sound recording:
➢ Means any fixation or storage of sound, or data or signals representing
sounds, capable of being reproduced, but does not include a soundtrack
associated with a cinematograph film
o An actual recording made on a tape or other recording medium of
sounds, data or signals representing sounds
o Not limited to music and songs on recordable tapes or CDs, but
extends to spoken word recorded on a dictation machine
o Differentiate from musical works, which may form part of a sound
recording but is an entirely separate work
Broadcast:
➢ Means a telecommunication service of transmissions consisting of
sounds, images, signs or signals which takes place by means of
electromagnetic waves of frequencies of lower than 3000 GHz
transmitted in space without an artificial conductor and is intended for
reception by the public or sections of the public
o Signals carry visual and audial content issued by a broadcaster’s
transmitter
Programme-carrying signals:
➢ Means a signa; embodying a program which is emitted and passes
through a satellite
o Frequently also a carrier of other separate copyright works
Published edition:
➢ Means the first print by whatever process of a particular typographical
arrangement of a literary or musical work
o The published edition is work separate from the literary or musical
content and is limited to the specific typographical arrangement
in which the pre-existing content is organised
o Published editions are the edited and formatted versions in which
publishers have reorganised raw literary or musical content in
preparing it for publication
Explain fully the requirements to which a work should comply in order to be the
object of a copyright:
▪ No formalities prescribed
▪ The subsistence of copyright in SA law prescribes no
formalities
▪ Consistent with the Berne Convention
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▪ Copyright is the only form of IP provided for by statute which
does not require registration to come into being
▪ Copyright law does not make provision for any process
of registration of copyright
▪ BUT: Registration creates a higher burden of proof
when endeavouring to establish the subsistence of
copyright
▪ Therefore, it is advisable to keep accurate and detailed
records as to how, when and by whom the work was
created
▪ Copyright comes into existence automatically upon
compliance with certain requirements or conditions stipulated
in the Copyright Act
▪ Originality
▪ Primary requirement for the subsistence of copyright
▪ Low threshold for originality: Work must be the product of an
author’s own endeavours i.e. Emanating from the author
herself
▪ Need not be inventive, creative or new (differs from
patent law)
▪ Originality amounts to sufficient application of the
author’s mind (Moneyweb case)
▪ Work must not have been taken or copied from a prior
work of another person, but rather it must have been
made, created or brought about by the author’s own
independent skill and effort (Saunders Valve Co Ltd
case)
▪ Factual assessment of whether the product of the author’s
labours and endeavours constitutes a ‘work’
▪ The actual time and effort expended by the author is a
material factor to consider in determining originality
(Waylite Dairies case)
▪ Copyright claimant must show that she has made an
independent or own contribution, which involved the sweat of
the brow, in making the end product in which copyright is
claimed
▪ Material form
▪ S 2(2) of the Copyright Act stipulates that a work shall not be
eligible for copyright unless the work has been written down,
recorded, represented in digital data or signals or otherwise
reduced to material form
▪ Copyright does not subsist in ideas, thoughts or facts (Galago
Publishers (Pty) Ltd v Erasmus)
▪ BUT: Copyright subsists in the physical or material
manifestation or embodiment of such elements, once they are
created or come into being
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▪ Work first published in a Berne Convention country (link to #5)
▪ S 1(5) of the Copyright Act describes the circumstances under
which a work is deemed to have been published:
▪ If copies of such work have been issued to the public
▪ With the consent of the owner of the copyright in the
work
▪ In sufficient quantities to reasonably meet the needs of
the public, having regard to the nature of the work
▪ First publication of a work in SA or a country to which the
operation of the Copyright Act has been extended applies in
the alternative to the work having been authored by a ‘qualified
person’ and provides a means of qualifying a work for
copyright where it has not been authored by a qualified person
▪ Publication of cinematograph films & sound recordings occurs
upon sale, letting, hiring or offering for sale of copies thereof
▪ The following works do not constitute publications for
purposes of copyright protection:
▪ Performance of a musical or dramatic work,
cinematograph film or sound recording
▪ Public delivery of a literary work
▪ Transmission in a diffusion service
▪ Broadcasting a work
▪ Exhibition of a work of art
▪ Construction of a work of architecture
▪ Author is a ‘qualified person’ (link to #4)
▪ At the time the work or a substantial part thereof was made,
the author(s) must have been a ‘qualified person’
▪ Natural person: An individual who is a SA citizen or is
domiciled or resident in SA
▪ Juristic person: A body incorporated under SA law
▪ International nature of copyright law warranted an extension
of the definition of ‘qualified person’ to include natural and
juristic persons of countries which the operation of the Act has
been extended i.e. Berne Convention countries
Discuss fully, with reference to case law, whether computer programmes and
databases may be the objects of copyright:
o ‘Computer-generated’ works versus ‘computer-assisted’ works
➢ Computer-generated works:
▪ A work only qualifies as having been ‘computer-generated’ if it is
created by a computer in circumstances where there is no human
author of the work
➢ Computer-assisted works:
▪ A work qualifies as ‘computer-assisted’ if there is a human author
o Copyright protection of computer programmes is linked to the lines of code written
by the creator
