Intellectual Property Law Notes
Chapter One: Copyright
Introduction
Description of Copyright
Intellectual property: encompasses all various types of products of the human intellect and is
protected by various forms of rights of which copyright is one
Copyright is provided for by statute and is unregistrable and does not have some sort of
registration as a requirement for its substance
o It subsists automatically in specified categories of work, provided that certain conditions
are met
Copyright grants the owner exclusive statutory rights w.r.t the rendering or specific
performance in relation to the specified works as well as the right to prevent others from
performing those acts w.r.t those protected works
o Right to authorize others to perform such acts included
Rationale: Afford the owner of the works the opportunity to exploit and profit from the
protected work provides motivation for further innovation and creativity
Essence of copyright is the nature of the subject matter in which it subsists
Legislative Framework and International Arrangements
Provided for and regulated by the Copyright Act 98 of 1978 as amended and the Regulations
under the Act deals with all matters pertaining to copyright
o Amended by the Intellectual Property Laws Amendment Act 28 of 2013, which has been
passed by Parliament, but has not as of yet been put into operation, thus, such
amendments to the Copyright Act have not yet taken effect
o One amendment= protection of traditional works known as traditional knowledge which
are a species of immaterial property
Problematic, as such circumstances are not compatible with basic principles of
copyright law
Copyright Act applies to all works created after its commencement, but also to the enforcement
of copyright to works made prior to 1979
o Question of subsistence, duration and ownership of a copyright in a work made prior to
1979 are determined by the Act that was in force at the time when the work was made
o The continued protection of that work is provided for in the 1978 Act
The Principle of National Treatment
Where a South African copyright owner becomes aware of the unauthorised use of his work in
another country or visa verse
, Copyright is territorial and SA law does not apply in other countries and visa verse, thus there is
an international law principle known as ‘national treatment’
Rights of foreigners and local subjects are treated equally under local law, which is the
applicable law
Promises foreign copyright owners that they work will enjoy the same treatment as the
protecting country gives the works of its own nationals, thus foreign works are treated as local
works
Thus, a foreign copyright owner cannot invoke the provisions of his home country’s copyright
law in a local environment
Principle behind this: granting of reciprocal rights between countries
Regulated in the Berne Convention
Addressed in the Regulations promulgated by the Act i.t.o which the provisions of the Copyright
Act also apply to the works of foreign nationals of the member countries of the Berne
Convention, rendering them ‘qualified persons’
o Since SA is a signatory to the Berne Convention, the works of its nationals are entitled
to the same protection as domestic works in other Berne Convention countries
TRIP Agreement of which SA is a member has provisions to the same effect as the Berne
Convention
Protectable Subject Matter
What Constitutes ‘Work’?
If not constituting one of the types of work provided for in the Act, no copyright can subsist in
that work
In general, there is no overlap of types of work, although separate aspects of particular subject
matter may fall under more than one type of work
o E.g. song= literary work as well as a musical work
How to determine whether Subject Matter is a ‘Work’
Subject matter must be of sufficient substance to justify being attributed to a form of exclusivity
The nature of it must be of such, so that endowing the subject matter with limited monopoly
will not unduly restrict others
Titles: Generally, a name or title is not sufficient substance to warrant copyright protection
o However, protection may be achieved i.t.o registration as a trade mark i.t.o the Trade
Marks Act
Requirements for Subsistence of Copyright
,No Formalities Prescribed
Copyright is the only form of intellectual property provided for by statute which does not
require some form of registration in order to come into existence
o No provision is made in copyright law for any process of registration (save in exceptional
cases discussed later)
o Some countries do make provision for registration of copyright, but merely as a measure
of proof, rather than a requirement
Copyright comes into existence automatically upon compliance with certain requirements or
conditions stipulated in the Act
Requirements:
o Originality
o Material form
o Authored by a ‘qualified person or be first published in SA or in a Berne Convention
country
Originality
Section 2(1) The Act does not give an exact definition, but stipulates this requirement
In order to consider what constitutes originality and how the term is interpreted, it is important
to look at the authority
o Kalamazoo:
Original skill/ labour in execution, NOT to the original thought or expression of
such
It is required is that the work eminate from the author himself and not be
copied from another work
Must be shown that some labour, skill or judgment has been brought to bear on
the work before copyright can be claimed, the amount of which differs
depending on the facts of the case
o Saunders Valve Co Ltd v Klep Valves (Pty) Ltd:
Originality does not mean original in the layperson’s sense- it does not mean
novel, new or inventive
However something that is new and inventive should be regarded as
new
Supra: ‘Original’ means no more than that the work should be the product of
one’s own endeavors and that it should not have been copied from another
source
o Marick
does not require that the work be unique or inivative, but merely a product of
the author’s own labour and endeavours, rather than a slavish copy of the work
of another
o Accessio
, Originality depends on the amount of skill, judgment or labour that has been
involved in the making of the compilation
Does not demand innovative thought, but only that the work should not be
copied and should originate from the author
Many compilations have nothing original in their parts, yet the sum of total of
the compilation may be original
o Waylite Diaries
The application of knowledge, skill and labour must produce a result whoch is
not merely commonplace
Must have a quality of individuality
Actual time and effort extended by the author is a material factor to consider in
determining originality- it remains a value judgment whether that time and
effort produces something original
Question of originality= factual inquiry and is thus the work of the count to adduce whether the
work before it is an original one i.t.o evidence
Use of Existing Material
Section 2(3)
A work does not need to be made without reference to existing material
The question remains whether the author has expended sufficient independent skill and labout
to justify copyright protection
Authority
o Maurick: The requirement for originality does not mean that the work must not be
made with reference to existing material
o Accessio: Work may be original even if the author has drawn on knowledge common to
himself and others or has used already existing material (without slavishly copying such)
provided that he or she has spent skill, labour
Derivative Works
Originality has reference to works which are the result of the author’s own efforts
If they comprise, or are derived from pre-existing material, but nevertheless include new
material, they can be partially original
o Partially original: The author’s copyright will reside in those parts
The author’s laboursmust first produce a work and it must be shown that such labours
objectively produced something of substance
Once the objective enquiry is made, the author’s contribution must be assessed subjectively
o If there is substantial effort, copyright will subsist in the work
Insofar as existing material is used, in the new work, the author must acquire permission from
the author of that material, or he could be infringing on their copyright
Authority
