1. S P O O R & F I S H E R THE LAW OF COPYRIGHT and the making of multiple copies Presented by: Duncan Maguire Spoor & Fisher www.spoor.com

2. S P O O R & F I S H E R Where does the law of Copyright fit in? What is Intellectual Property? Intellectual Property and Copyright

3. S P O O R & F I S H E R Intellectual Property and Copyright Patents Registered designs Trade marks Copyright (the Cinderella of IP)

4. S P O O R & F I S H E R Intellectual Property and Copyright Yes, Cinderella has been invited to the ball Yes, it is a form of Intellectual Property Aimed at preventing unauthorised persons from copying certain types of works

5. S P O O R & F I S H E R Intellectual Property and Copyright The exclusive right to control the use of a work in all manners in which it can be exploited for personal gain or profit

6. S P O O R & F I S H E R Works eligible for Copyright 

7. S P O O R & F I S H E R Literary Works Copyright Act No.98 of 1978

8. S P O O R & F I S H E R Artistic Works Copyright Act No. 98 of 1978

9. S P O O R & F I S H E R Published editions Copyright Act No.98 0f 1978

10. S P O O R & F I S H E R Copyright subsists automatically No formal steps, such as registration, are required to be taken in order to obtain copyright in a work A particular work must, however, meet certain requirements in order to enjoy copyright How does copyright come into existence?

11. S P O O R & F I S H E R ORIGINALITY ● The work must be original ● The work must be the product of the creator’s own efforts and skills ● It should not be copied from other sources Requirements for Copyright to exist

12. S P O O R & F I S H E R MATERIAL FORM Copyright does not exist in an idea alone The idea must exist in a material form (reduced to paper, etc) Requirements for Copyright to exist

13. S P O O R & F I S H E R QUALIFIED PERSON The creator or author of the work must be a citizen, resident, or must be domiciled in SA or a Berne convention country or work first published in SA or in one of the Berne convention countries Requirements for Copyright to exist

14. S P O O R & F I S H E R PUBLICATION ● If published, copies of the work must be issued to the public with the consent of the Copyright Owner in sufficient quantities to satisfy the public’s reasonable requirements Requirements for Copyright to exist

15. S P O O R & F I S H E R AUTHOR The author or creator of a work is the cornerstone of copyright law The author of a work is the person who is responsible for the creation of the material embodiment of the work Requirements for Copyright to exist

16. S P O O R & F I S H E R Author (continued) Person first making or creating literary, musical or artistic work Publisher of a published edition Requirements of Copyright to exist

17. S P O O R & F I S H E R GENERAL RULE Creator or author of the work is the owner EXCEPTIONS Employer -Work made during course and scope of employment under contract of employment Commissioner – taking of a photograph / drawing of a portrait / the making of a cinematograph film/ the making of a sound recording / the making of a gravure State - Work made under its direction or control Ownership of Copyright

18. S P O O R & F I S H E R A generous period is afforded to the Copyright owner for controlling the use of the work The terms for copyright for various types of works vary At expiry of the term of copyright in a work, the work falls into the public domain Duration of Copyright

19. S P O O R & F I S H E R Copyright has a definite life span Literary, Musical & Artistic works - 50 years from the end of the year in which the author dies or 50 years from year of exploitation Published editions – enjoy Copyright for a period for 50 years from the date on which they are first published Term of Copyright

20. S P O O R & F I S H E R “Restricted Acts” The Act details a list of acts or dealings in respect of each of the types or categories of works, which are the monopoly of the copyright owner. The restricted acts differ from one type of work to another. In essence they amount to copying the work in one form or another and/or exploiting the work commercially Nature and Scope of Copyright

21. S P O O R & F I S H E R ● Reproducing the work in any manner or form Publishing the work in any manner or form Performing the work in public Making an adaptation of the work Letting or offering or exposing for hire by way of trade a certain work Most common forms of Restricted Acts

22. S P O O R & F I S H E R The infringer must have performed a Restricted Act. actual copying There must be actual copying of the work. not Copyright is not infringed if a second work is created independently. substantial part Must be a copy of a substantial part of the original work. Infringement of Copyright

23. S P O O R & F I S H E R Knowledge of the infringing nature is not a component of direct copyright infringement (copying, reproduction, adaptation, etc) Guilty knowledge on the part of the person committing an act of indirect infringement is required (importation, distribution, arranging public performances, etc) Infringement of Copyright

24. S P O O R & F I S H E R Letter of demand Prior convictions Warning Dealer – proving knowledge in trade Establishing guilty knowledge

25. S P O O R & F I S H E R Limitation of Monopoly - the “Three- Step Test” Article 9(2) of the Berne Convention (which is echoed in Article 13 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1994), sets out 3 requirements to be present in order to prescribe limitations on the copyright owner’s exclusive right of reproduction: –Special case –May not conflict with the normal exploitation of the work –May not unreasonably prejudice the legitimate interests of the author

26. S P O O R & F I S H E R Limitation of Monopoly ● The balancing of rights ● The concept of fair dealing is a vague indefinite one which is contained in Section 12 of the Copyright Act. It is a question of fact to enable the Court to take all the circumstances into account ● Any fair dealing with a literary or artistic work or published edition does not infringe Copyright when it is: ● For purposes of research or private study by, or the personal private use of, the person using the work; ● For the purposes of criticism or review of that work or of another work; or ● For the purposes of reporting current events: - In a newspaper, magazine or similar periodical; or - By means of broadcasting or in a cinematograph film

27. S P O O R & F I S H E R How much may I copy under fair dealing? It is a question of fact which will depend on the circumstances of each case The doctrine of fair dealing is neither qualified nor quantified

28. S P O O R & F I S H E R Factors likely to be taken into account in determining whether the dealing was fair The purpose and character of the use The nature of the copyright-protected work The amount and substantiality of the portion used The effect upon the copyright owner’s potential market

29. S P O O R & F I S H E R CIVIL PROCEEDINGS: Interdict Delivery up Damages (reasonable royalty) Anton Piller order Remedies available

30. S P O O R & F I S H E R Remedies available CRIMINAL PROSECUTION: ● First conviction – fine of R5 000 or imprisonment of 3 (three) years, or both, for each infringing article ● Second conviction – fine of R10, 000 or imprisonment of 5 (five) years, or both, for each infringing article ● Forfeiture

31. S P O O R & F I S H E R The doctrine of fair dealing only applies to what a person may make for his or her own use Multiple copies fall outside the ambit of fair dealing The golden rule of fair dealing: “Take not from others to such an extent and in such a manner that you would be resentful if they so took from you” - Joseph McDonald What about multiple copies

32. S P O O R & F I S H E R What is DALRO? Dramatic, Artistic and Literary Rights Organisation It is a multi-purpose copyright lisensing society administering various forms of copyright on behalf of authors and publishers Main areas of copyright administration are: –Reprographic reproduction rights (photocopying from published editions) –Public performance rights (stage rights) –Broadcast rights (radio and television) –Reproduction rights in works of visual art

33. S P O O R & F I S H E R DALRO’s licensing of Reprographic Reproduction Rights The system of licensing in the South African legal framework enables voluntary collective licensing Transactional licensing Blanket licence (managing the risk)

34. S P O O R & F I S H E R Transactional Licence One-off licence Reproduction-, item- and purpose-specific, e.g. the making of 355 copies of an article of 15 pages from the South African Journal of Economics for an Economics I module in a particular year Upfront application for authorisation against payment of a calculated reproduction right royalty

35. S P O O R & F I S H E R Transactional Licence ● Applications for all forms of reproduction, or dissemination for any purpose, must be submitted to the Institution’s Copyright Officer ● No licensable reproduction, or other forms of licensable dissemination, may take place before the necessary transactional licences have been obtained

36. S P O O R & F I S H E R What is licensable? ● Course packs or readers, i.e. compilation works containing extracts from a variety of published sources, distributed to students; ● Single Item Handouts, i.e. journal or magazine articles, or extracts from books, in excess of the reproduction quota determined by Regulation (Section 13 of the Copyright Act); ● Transient (for the duration of the course or module) electronic copies for printing out substantially identical paper copies, either by lecturers, or by the students themselves. A typical example of this is the posting of works on the Institution’s password-protected, secure internal networks.

37. S P O O R & F I S H E R What is licensable? continued ● Placing of copies (single items and/or compilation works) in the library’s short loan section (i.e. reserve) for on-copying by students ● Alternative-format copies for the visually impaired

38. S P O O R & F I S H E R Extent of Copying ● From a book, a maximum of one chapter if the book is divided into chapters, or approximately 10% if there is no chapter division; ● From a journal or magazine, the complete article (one or more) required; From a collection of law reports or statutes, the complete report or statute (one or more) required; From an anthology or volume of short stories or poetry, the complete short story or the complete poem

39. S P O O R & F I S H E R How should Transactional Licences be applied for? Lecturers may use the customary DALRO Application Form. Pertaining to the various forms of reproduction, or alternative forms of dissemination, the number of items to be applied for is as follows: For each item to be distributed to students as part of a course pack, or single handout, the number of course packs or single handouts to be made. For each item to be posted on the Institution’s password-protected, secure internal networks, the number of students enrolled for the specific course or module, in other words, the potential reproduction of the transient electronic copy to be made For each item to be placed on reserve in the library’s short loan section in copied form (not original published editions!) for possible (or recommended) on-copying by students, the number of students enrolled for the specific course or module, in other words, the potential reproduction of the reserve shelf copy(ies) to be placed.

40. S P O O R & F I S H E R Information Required In addition to the information relative to the reproduction (number of pages, and number of copies of those pages), the application to the Institution’s Copyright Officer should contain full bibliographical details: Title of the publication, i.e. book, journal, magazine etc. Title of the article, if reproduction is from a journal or magazine, ISBN of book, or ISSN of journal/magazine; Author(s)/Editor(s) of the book or author(s) of the article

41. S P O O R & F I S H E R Blanket Licence Umbrella licence (managing the risk) Authorises reproduction in advance but requires retrospective reporting Payment of fixed fee per Full-time Equivalent Student (FTES)

42. S P O O R & F I S H E R THANK YOU ANY QUESTIONS?