Lu 4 (4)

Exclusive Rights

Introduction

  • Copyright law recognizes both economic and moral rights of an author.

  • Sections 6 to 11 of the Copyright Act outline the specific rights for each category of work, detailing which actions the copyright owner can exclusively authorize.

  • These restricted acts vary by category; for literary or musical works, Section 6 grants exclusive rights for reproduction, publication, public performance, broadcasting, adaptation, etc. Adaptation includes translation for literary works.

  • Essentially, restricted acts involve the copying or commercial use of the work.

Infringement of Copyright

  • Copyright infringement can be direct or indirect.

  • Direct infringement occurs when someone performs actions reserved for the copyright owner without permission, e.g., copying or publishing the work.

  • Indirect infringement happens when someone knowingly imports an infringing copy into South Africa for non-private/domestic use without consent.

  • Performing a work in public without the copyright owner's consent is direct infringement, while permitting a venue to be used for such a performance, knowing consent is lacking, is indirect infringement.

The Right to Make a Reproduction

  • Reproduction as a restricted act can occur in any manner or form.

  • The right extends to digital reproductions, whether permanent, temporary, or transient.

  • Section 2(2) of the Copyright Act states that a work represented in digital data or signals meets the requirement of material embodiment.

  • The term "reproduction" is broadly interpreted. Making temporary or permanent electronic copies can constitute infringement.

  • In Pastel Software (Pty) Ltd v Pink Software (Pty) Ltd, the temporary and transient electronic reproduction of a work on a computer screen was held as copyright infringement.

  • There's international consensus that permanent electronic storage of a work is a restricted act.

  • The United States' White Paper on Intellectual Property Enforcement Legislative Recommendations supports this, advocating for increased statutory maxima for related offenses and additional enforcement tools.

  • The WCT is important for reproduction rights.

  • Article 1(4) of the Treaty incorporates the Berne Convention's substantive provisions, applying the reproduction right to the storage of works in digital systems of any nature (permanent, temporary, transient, or incidental).

  • The WIPO Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions addressed Computer Programs (Article 4), Databases (Article 5), and the Scope of Reproduction Rights (Articles 7(1) and (2)).

  • Transient or temporary copies can be made when a file is loaded into a computer's RAM, saved on a hard disk/CD-ROM, downloaded from a website (viewing, saving, printing), or uploaded to a website.

  • Copying also occurs with proxy-server caching.

  • An end-user's screen display might constitute a copy.

  • Article 7 of the Basic Proposal for the Substantive Provisions of the Treaty on Certain Questions Concerning the Protection of Literary and Artistic Works explains the Scope of the Right of Reproduction.

  • The WCT doesn't expand the reproduction right, deeming the Berne Convention's formulation broad enough to cover then-unknown forms of copying.

  • The EU's Information Society Directive and the Copyright Amendment Bill, 2015 address the temporary reproduction of works.

Publication

  • Under the Copyright Act, a literary or musical work is published when copies are issued to the public.

  • "Copy" is defined as a reproduction or adaptation of a literary, musical, or artistic work, cinematograph film, or computer program.

  • Copyright protection requires the work to be made by a qualified person or first published in a member country of the World Trade Organisation.

  • A literary work is deemed published if copies are issued to the public with the copyright owner's consent.

  • Section 1(5) targets tangible media like books or disks.

  • Section 2(2) states that a work