February – April 2015
Welcome
Housekeeping / admin §  Once oﬀ: Registra0on / coﬀee & tea / bathrooms §  A7endance register (minimum a7endance requirements) §  Short round of introduc0ons (name, background, why Copyrightx) §  Part of an experiment (MOOC ini0a0ves at UCT); feedback welcome §  H2O / access to video lectures working ok? First impressions? Welcome
Syllabus §  Founda0ons of Copyright / Fairness & Personality Theories (12 February 2015) §  Subject Ma7er of Copyright (19 February 2015) §  Authorship / Welfare Theory (26 February 2015 – Bram) §  Mechanics of Copyright (05 March 2015) §  The Rights to Reproduce and Modify (12 March 2015) §  The Rights to Distribute, Perform and Display (19 March 2015) §  Fair use and fair dealing (26 March 2015) §  Secondary liability / Cultural Theory (09 April 2015) §  Remedies (16 April 2015) §  Copyright, Innova0on & Development (23 April 2015) Welcome
Overarching goals of CopyrightX: UCT §  Provide an overview about copyright law §  Examine and discuss the impact of copyright on crea0vity §  Create awareness about the underlying theories for copyright protec0on §  Discuss how copyright could be improved §  Analyse the impact of techology on copyright §  Provide South African context to the US and global perspecHves Seminar 1 FoundaAons of Copyright & Fairness and Personality Theories 12 February 2015 Overview
Part I §  History of copyright in South Africa §  Interna0onal instruments relevant for South Africa §  Key requirements for the subsistence of copyright in South Africa §  Ideas, facts, expression Part II §  Copyright theories, overview §  The fairness theory §  The personality theory §  Case study: FiZy shades of Dorian Gray Part 0
Let’s start with this…
Do you need to know more about the South African legal system – courts, branches of law etc? Let’s start with this…
What is copyright? “Copyright is the exclusive right in relation to
work embodying intellectual content to do or
to authorize to do certain acts in
relation to that work.”
Part I
History of copyright law in SA
§  Roman-‐Dutch ‘common law’ copyright (1803 -‐ 1916) §  1803 Copyright Act of the Batavian Republic became common law of the Cape, Transvaal, Orange Free state and Natal provinces §  Provincial Copyright Acts §  Patent, Trade Marks, Designs and Copyright Act 9 of 1916 §  Incorpora0on of the United Kingdom Copyright Act of 1911 plus varia0ons §  Copyright Act 63 of 1965 §  Based on United Kingdom Copyright Act of 1956 which had repealed the 1911 Copyright Act. §  Copyright Act 98 of 1978 §  Departed from United Kingdom Copyright Act of 1956, but departs on independent course in the ﬁeld op copyright §  Amended 7 0mes (1980, 1983, 1984, 1986, 1988, 1992, 1997) History of copyright law in SA
§  S43: ApplicaAon to works made before the commencement of the Act The general principle is that the Act applies to works made before commencement of the Act but it doesn’t create © in works in which © couldn’t exist prior to 1965, and it doesn’t aﬀect ownership, dura1on and existence of copyright which already existed before. Copyright protection is territorial!
(P)?
The Internet
Relevant international
copyright treaties, aiming
to harmonise copyright laws
§  Berne ConvenAon for the Protec0on of Literary and Ar0s0c Works [1886] §  Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) [1994] §  WIPO Copyright Treaty (WCT) [1996] §  Marrakesh Treaty on excep0ons for the visually impaired [2013] Berne Convention
§  Protec0on for literary and arAsAc works §  Focus on right of reproducAon (s 9) §  Protects moral rights §  No enforcement mechanisms (“no teeth”) §  In force, 168 par0es South Africa §  Subscribed to the 1948 Brussels text of the conven0on (as far as substan0ve law) §  Not directly bound by the full text of the latest 1971 Paris text (so only bound by previous texts) of the conven0on; but bound via TRIPS TRIPS
§  Incorporates protecAon from Berne ConvenAon §  Broadened protec0on: computer programs, data bases §  No protecAon of moral rights §  Detailed rules regarding enforcement and Dispute Se`lement mechanisms (‘teeth’) South Africa §  As a member of the WTO bound by TRIPS WCT
§  Introduces rights of distribuAon, rental and communicaAon to the & addresses computer programs as literary works (art 4) and data bases (art 5) §  AnA-‐circumvenAon provisions South Africa §  Signed in 1997 but has not yet raAﬁed the ‘WIPO Copyright Treaty’ due to fear of nega0ve impact on its social and economic development Marrakesh Treaty
§  Addresses Published Works §  Permits crea0on of so-‐called accessible format copies and allow cross-‐
§ 
border transfer to improve access for visually impaired persons For the ﬁrst 0me, focus was on limitaAons of copyright rather than expansion of rights §  Not yet in force – 6 par0es; 20 are needed South Africa §  not signed, not ra0ﬁed Important elements of those
international treaties
§ 
§ 
§ 
§ 
Minimum standards for protec0on NaAonal treatment principle No formaliAes for copyright protec0on Three-‐step test Important elements of those
international treaties
Three-‐step test (as contained in s9 of the Berne Conven0on): “It shall be a ma9er for legisla1on in the countries of the Union to permit the reproduc1on of such works in certain special cases, provided that such reproduc1on does not conﬂict with a normal exploita1on of the work and does not unreasonably prejudice the legi1mate interests of the author.” South Africa is not part of any
regional
agreements concerning copyright (e.g.,
OAPI) – but be aware of FTAs
Any questions?
Requirements for copyright
protection in SA
§  Originality §  Material form §  Qualiﬁed person (s37 !) Material form
§  Work must be reduced to material form (in wri0ng or other material form) §  Special case for broadcasts and programme-‐carrying signals §  Broadcasts must have been broadcast §  Programme-‐carrying signals must have been transmi7ed via satellite Idea/expression dichotomy Propriety of work?
§  Will the law protect works which are considered improper, indecent or lacking in propriety? §  Common-‐law requirement §  Nothing in Copyright Act about propriety (see §  Divided opinions on whether propriety is a condi0on for subsistence of a work, or only aﬀects the enforcement of copyright Qualified person
§  Sec0on 3(1) “Copyright shall be conferred by this sec0on on every work, eligible for copyright, of which the author or, in the case of a work of joint authorship, any one of the authors is at the 0me the work or a substan0al part thereof is made, a qualiﬁed person, that is— (a) in the case of an individual, a person who is a South African ciAzen or is domiciled or resident in the Republic; or (b) in the case of a juris0c person, a body incorporated under the laws of the Republic […]” Is there a problem with this? Originality
Originality in the U.S.
§  Low standard §  Not required: novelty, quality, noncommercial, lawful §  But: According to Feist, “some degree of creaAvity is required”; mere labour (or “sweat of the brow”) is not suﬃcient. Originality in the EU
§  Higher standard §  Diﬀerent standards in diﬀerent countries §  But: EU DirecAves & ECJ cases have resulted in some harmonisaAon… [ also: see appendix] Originality in SA
§  Not deﬁned in the Act §  Low originality standard §  Does NOT mean work must be unique, inven0ve or novel §  But must be product of the author’s own labour §  Ma7er of degree depending on the amount of skill & eﬀort involved in the making of the work §  à sweat of the brow §  Fact that a work is copied (and possibly infringes copyright) does NOT mean it cannot be original (sec0on 2(3)) “If a work is eligible for copyright protec0on, an improvement or reﬁnement of that work would similarly be eligible for copyright, even if the improved work involved an infringement of copyright in the original work, if it sa0sﬁes the requirement of originality. That will be the case only if the improvement or reﬁnement is not superﬁcial. The altera0on to the original work must be substanAal.” (Haupt t/a SoM Copy v Brewers MarkeHng Intelligence (Pty) Ltd) Originality in SA
§  Lower standard than even in the US, creaAvity is not required §  Facts are not protected – but the expression of such facts may well be … Examples: q 
q 
q 
q 
q 
List of railway sta0ons Chronological ﬁxture of football games Directory of telefax users Catalogue and price list Further reading: h7p://www.ajol.info/index.php/pelj/ar0cle/
viewFile/101893/91942 Overview
Part I §  History of copyright in South Africa §  Interna0onal framework South Africa is bound by §  Requirements for the subsistence of copyright in South Africa §  Originality in EU Copyright Law (case study) Part II §  Copyright theories §  The fairness theory §  The personality theory §  FiZy shades of Dorian Gray (case study) Part II
{Not much to add to the
video lecture}
So, what did you think? You think
we need those theories?
Some commentators have identified up to seven
main theories for copyright protection
Both theories discussed so far are author-centric
The fairness theory
è © to ensure everyone is fairly rewarded (“just reward”) §  Philosophical underpinning and its main proponents explained in Prof Fisher’s video §  A key problem is, however, that tangible and intangible goods are substanAally diﬀerent (non-‐exclusivity and non-‐excludability of intangible goods) and that calls into ques0on whether theories developed for tangible goods should simply be extended to intangible goods. The personality theory
è © to protect the emoAonal band between arAst and his art. §  Re-‐inforces the need to protect Moral Rights, especially §  right of a`ribuAon (SA) §  right of integrity (SA) Case study: Finy shades of Dorian Gray Author: Martha Vega-‐Gonzalez & Gloria Park -‐ January 26, 2015 © 2015, Gloria Park. This case study was originally written by Martha Vega-Gonzalez and was
subsequently revised by Gloria Park.
The terms on which this case study may be used or modified are available at copyx.org/permission
Mash-up novels have
proliferated in recent years
http://screenrant.com/abraham-lincoln-vampire-hunter-literary-mash-up-list-aco-180542/
“Reworked” public domain works,
often involving Ninjas, Zombies
http://screenrant.com/abraham-lincoln-vampire-hunter-literary-mash-up-list-aco-180542/
Marketed as joint works by
the original and new authors
Trailer of The Meowmorphosis, a mashup of Franz Kata’s The Metamorphosis: Fifty shades of Dorian Gray
Oscar Wilde and Dorian Gray
“It contains much of me in it. Basil Hallward is what I think I am: Lord Henry is what the world thinks me: Dorian is what I would like to be—in other ages, perhaps.” Oscar Wilde, LeZer to Ralph Payne “Oscar Wilde’s Wildest and Oscarest work.” Punch http://commons.wikimedia.org/wiki/
File:Oscar_Wilde_by_Napoleon_Sarony_3g0709
9u.jpg
Publishing Wilde without
permission
http://www.simonbeattie.kattare.com/
http://www.bl.uk/onlinegallery/features/
oscar/de_profundis_large.html
http://law2.umkc.edu/faculty/projects/
ftrials/wilde/images.html
“[Robert Sherard] … comes to see me, and … tells me … you are about to publish an ar0cle on me with specimens of my le7ers…. I was greatly taken aback and much annoyed, and gave orders that the thing was to be stopped at once.” -‐Oscar Wilde’s Le7er to Alfred Douglas from Prison, 1897 (De Profundis) Original vs Mash-up
§  Style and plot are diﬀerent §  Gender and traits of characteris0cs are diﬀerent: §  Lord Henry Wo7on replaced by Helen Wo7on §  Basil Hallward replaced by Rosemary Hall §  Some text taken from Wilde. Overall plot and character development bear similari0es to the original canon §  Spelling changed from UK to US conven0on §  No preface with ar0s0c manifesto §  Mashup has pornographic content with graphic details of heterosexual rela0ons among the three principal characters Discussion
1. 
2. 
3. 
4. 
Should Oscar Wilde (or his heirs) have moral rights in The Picture of Dorian Gray? If so, how extensive should these rights be? Should anyone else be en0tled to object to the prepara0on and distribu0on of works of this sort? Does the new author deserve protec0on? If you answer “yes “ to 2 and 3, how can the compe0ng interests be balanced? This concludes our first seminar!
Thank you very much.
Any questions?
Appendix - originality
Database Directive
§  Direc0ve 96/9/EC of 11 March 1996 §  A database is original if it is “the author's own intellectual crea0on” (in the selec0on or arrangements of contents) §  and no other criteria such as “aesthe0c or qualita0ve criteria” shall be applied §  But allows protec0on of“investment in obtaining, verifying or presen0ng the contents” Sources: Recital 15 et seq. and Art. 3(1) Software Directive
§  Direc0ve 91/250/EEC of 14 May 1991, now 2009/24/EC of 23 April 2009 (codiﬁed version) §  A computer program is original if it is “the author's own intellectual crea0on” §  and “no other criteria such as qualita0ve or aesthe0c merits shall be applied” Sources: Recital 8 and Art. 1(3) Copyright Term Directive
§  Direc0ve 93/98/EEC, now by Direc0ve 2006/116/EC of 12 December 2006 (codiﬁed version) §  A photograph is original if it is “the author's own intellectual crea0on” §  and “no other criteria such as merit or purpose” shall be applied §  But allows protec0on for “other” photographs Sources: Recital 16 and Art. 6 European Court of Justice (1)
§  Case C‑5/08 Infopaq InternaHonal [2009] (Infopaq) §  Copyright within the meaning of Ar0cle 2(a) of Direc0ve 2001/29 is liable to apply only in rela0on to a subject-‐ma7er which is original in the sense that it is its author’s own intellectual crea0on (par. 37) §  It is only through the choice, sequence and combina0on of those words that the author may express his crea0vity in an original manner and achieve a result that is an intellectual crea0on. §  11 consecu0ve words (“may not be ruled out that …”) European Court of Justice (2)
§  Case C‑393/09 Bezpečnostní soMwarová asociace [2010] (BSA); §  … the graphic user interface can, as a work, be protected by copyright if it is its author’s own intellectual crea0on (part. 46) §  Where the expression of those components is dictated by their technical func0on the criterion is not met, since diﬀerent methods of implemen0ng an idea are so limited that the idea and the expression become indissociable (idea-‐expression merger) (par. 49). European Court of Justice (3)
§  Joined Cases C‑403/08 and C‑429/08 Football AssociaHon Premier League and Others [2011] (FAPL) §  Spor0ng events cannot be regarded as intellectual crea0ons … especially football matches, which are subject to rules of the game, leaving no room for crea0ve freedom (Par. 98) Originality in EU copyright law Author: Thomas Margoni – Last revised: 18 December 2014 Copyright © 2014 Thomas Margoni. This case study is licensed under the Crea0ve Commons A7ribu0on-‐
NonCommercial-‐ShareAlike 4.0 License, the terms of which are available at h7p://crea0vecommons.org/licenses/
by-‐nc-‐sa/4.0/. European Court of Justice (4)
§  Case C‑145/10 Painer [2011] (Painer) §  An intellectual crea0on is an author’s own if it reﬂects the author’s personality, which is the case is the author was able to express his crea0ve abili0es in teh produc0on of the work by making free and crea0ve choices (par. 88) §  As regards portrait photographs, the photographer can make free and crea0ve choices in several moments: in the prepara0on phease, when taking the photograph and when selec0ng the snapshot European Court of Justice (5)
§  Case C‑604/10 Football Dataco v Yahoo [2012] (Football Dataco v Yahoo) §  … the fact that the sezng up of the database required, irrespec0ve of the crea0on of the data which it contains, signiﬁcant labour and skill of its author … cannot as such jus0fy the protec0on of it by copyright … if that labour and that skill do not express any originality in the selec0on or arrangement of that data