1. law, govt and politics
2. legal issues
3. civil law
4. copyright

February – April 2015
<The Lion Sleeps Tonight> Author: Bram Van Wiele Source: h?p://performingsongwriter.com/wp-­‐content/uploads/2011/11/solomon-­‐linda.jpg The creation of the song
Solomon Linda (le6) and his band, the Evening Birds Source: h?p://en.wikipedia.org/wiki/Pete_Seeger#mediaviewer/File:Pete_Seeger_NYWTS.jpg The song goes international
Pete Seeger (1955) The song goes international
More than 150 different arVst have record it ! Disney’s The Lion King
Pete Seeger:
Creates adaptation
Wimowehe in 1949
(Folkways Music)
Solomon Linda:
Composed song
Mbube in 1936,
died in 1962
The Tokens: Adaptation
The Lion Sleeps Tonight
in 1961
1992 (Abilene Music)
1983 (US
renewal)
&
1992
(worldwide)
assigned ©
S5(2) of the
1911 Imperial
Copyright Act
US$15 million
in royalties
?
survived by
1994
Legal proceedings
Sec2on 5(2) of the 1911 Imperial Copyright Act […] Insert art 5(2) Somewhat similar to US Termina2on rule paragraph 203 (aFer 35 years) Pete Seeger:
Creates adaptation
Wimowehe in 1949
(Folkways Music)
Solomon Linda:
Composed song
Mbube in 1936,
died in 1962
The Tokens: Adaptation
The Lion Sleeps Tonight
in 1961
1992 (Abilene Music)
1983 (US
renewal)
&
1992
(worldwide)
X X
© reverted back to
US$15 in
executor of estate
royalties
in 1987
© inf
ringe
ment
claim
2006: Settlement
survived by
1994
The settlement
Worldwide se?lement & se?lement of all claims on 21 February 2006: §  The Linda heirs will receive payment for past uses of The Lion Sleeps Tonight and an en2tlement to future royal2es from its worldwide use. §  The Lion Sleeps Tonight is acknowledged as derived from Mbube. §  Solomon Linda is acknowledged as a co-­‐composer of The Lion Sleeps Tonight and will be designated as such in the future. §  A trust will be formed to administer the heirs’ copyright in Mbube and to receive on their behalf the payments due out of the use of The Lion Sleeps Tonight. Discussion: Your opinion? §  Should the Linda heirs receive share of royalVes? §  Should we re-­‐introduce a reversionary copyright provision? Seminar 5: Commercial rights (I) Reproduc2ons Modifica2ons 12 March 2015 Syllabus §  FoundaVons of Copyright / Fairness & Personality Theories (12 February 2015) §  Subject Ma?er 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) §  <<break>> §  Copyright infringement/ Cultural Theory (09 April 2015) §  Remedies (16 April 2015) §  Copyright, InnovaVon & Development (23 April 2015) Overview
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The ReproducVon Right in South African copyright law The Right to Modify in South African copyright law Copying: ObjecVve similarity, substanVal copying and causal link ReproducVon (case study) Key issues discussed in the CopyrightX
video lectures
§  3 forms of reproduc2on §  Mechanical copying §  Reproducing from memory, even subconsciously §  “TranslaVon” into a different medium §  Improper misappropria2on §  Comprehensive copying §  “Fragmented literal similarity” §  “Comprehensive nonliteral similarity” Substan2al part (quality & quanVty & de minimis) Substan2al similarity test (various tests) Key issues discussed in the CopyrightX
video lectures
§  Unauthorised modifica2ons (s106(2)) §  (Can also infringe moral rights) §  Limited scope because right in 106(2) is overshadowed by reproduc2on right (Seinfeld case) – but sVll important in the area of translaVons, moVon picture adaptaVons, merchandise §  InteresVng consequence: no copyright protec2on (Prince case) Literary works (a) Reproducing the work in any manner or form; (b) publishing the work if it was hitherto unpublished; (c) performing the work in public; “Copyright is the exclusive right in relation to
(d) broadcas2ng the work; work embodying intellectual content to do or
(e) causing the work to be transmi?ed in a diffusion service, unless such service to authorize to do certain acts in
transmits a lawful broadcast, including the work, and is operated by the original relation to that work.”
broadcaster; (f) making an adapta2on of the work; (g) doing, in relaVon to an adaptaVon of the work, any of the acts specified in relaVon to the work in paragraphs (a) to (e) inclusive. The right to reproduce
“reproduc2on”, in relaVon to— (a) a literary or musical work or a broadcast, includes a reproducVon in the form of a record or a cinematograph film; (b) an ar2s2c work, includes a version produced by converVng the work into a three-­‐
dimensional form or, if it is in three dimensions, by converVng it into a two-­‐
dimensional form; (c) any work, includes a reproducVon made from a reproducVon of that work; and references to “reproduce” and “reproducing” shall be construed accordingly Defini2on in form of examples for the different kinds of works The right to reproduce (“copying”)
§  Broad scope of the term “reproducVon” (incl. temporary electronic copies!) §  ReproducVon doesn’t have to be in material form (vs fixaVon requirement for copies in the US) §  Includes: Reproduc2ons from reproduc2ons (“indirect copying”) §  Ar2s2c works: 2D à 3D and 3D à 2D (technical drawings – 3D prinVng!) –AdaptaVon? The right to reproduce (“copying”)
§  Broad scope of the term “reproducVon” does raise issues in the digital world (infringement / excepVons & limitaVons) §  Hyperlinking – Deep-­‐linking – Framing – Caching The right to modify / “making adaptations”
Again: no proper defini2on of “adapta2on” – merely examples for some kinds of works (not for, for instance, cinematograph films and sound recordings) The right to modify / “making adaptations”
“adapta2on”, in relaVon to— (a) a literary work, includes— (i) in the case of a non-­‐dramaVc work, a version of the work in which it is converted into a dramaVc work; (ii) in the case of a dramaVc work, a version of the work in which it is converted into a non-­‐dramaVc work; (iii) a translaVon of the work; or (iv) a version of the work in which the story or acVon is conveyed wholly or mainly by means of pictures in a form suitable for reproducVon in a book or in a newspaper, magazine or similar periodical; (b) a musical work, includes any arrangement or transcripVon of the work, if such arrangement or transcripVon has an original creaVve character; The right to modify / “making adaptations”
Cont. (c) an ar2s2c work, includes a transformaVon of the work in such a manner that the original or substanVal features thereof remain recognizable; (d) a computer program includes— (i) a version of the program in a programming language, code or notaVon different from that of the program; or (ii) a fixaVon of the program in or on a medium different from the medium of fixaVon of the program; The right to modify / “making adaptations”
ar8s8c work: “transformaQon of the work in such a manner that the original or substanQal features thereof remain recognizable.” Rapid Phase Entertainment vs SABC: No adapta2on; no adaptaVon of the arVsVc features or a?ributes – merely a use of the underlying concept The right to modify / “making adaptations”
S2(3): Copyright protec2on for adapta2ons is possible even if adapta2on involved copyright infringement! Seminar 8 In order to succeed with an infringement claim based on the reproducVon / adaptaVon right, copying of a substan2al part of the copyrighted work needs to be shown by the plainVff. “copy” means a reproducVon of a work, and, in the case of a literary, musical or arVsVc work, a cinematograph film or a computer program, also an adaptaVon thereof […] Infringement in the form of
reproduction or adaptation
1.  ObjecVve similarity 2.  SubstanVal part 3.  Causal link 1. Objective similarity
§  ObjecVve test §  Relevant in the context of non-­‐literal copying 1. Objective similarity
Galago Publishers (Pty) Ltd v Erasmus, 1989 (1) SA 276 (A) “Pictorial Account could not have been wriUen without conQnuous reference to Top Secret War, and the differences between the two in regard to content and language are mainly due to the fact that Pictorial Account was wriUen as an abridgement of Top Secret War with, as regards language, a considerable amount of colourable alteraQon. In producing Pictorial Account the author availed himself unlawfully of a great deal of the skill and industry that went into the wriQng of Top Secret War.” hUp://www.saflii.org/za/cases/ZASCA/1988/131.html 2. Substantial part
§  SimilariVes must relate to a substan2al part of the copyrighted work §  De Minimis doctrine also applies here §  “SubstanVal” relates to both quality and quality, with emphasis on quality… “[W]here a part of a work is reproduced the quesQon whether a substanQal part had been reproduced depends much more on the quality than the quanQty of what had been taken. It is true that in this case only 26 per cent of the graphic component and 83 per cent of the search component, consisQng of 63 lines of several thousand lines of source code, had been copied but then those lines were copied because Bento found it too difficult to write them himself. These components were clearly considered to be a valuable ingredient of the program by both Haupt and the respondents. For these reasons, the copying referred to, in my view, consQtuted the reproducQon of a substanQal part of the Data Explorer program. Haupt t/a So?copy v Brewers Marke8ng Intelligence (Pty) Ltd, hUp://www.saflii.org/za/cases/ZASCA/2006/40.html 3. Causal link
§  Actual copying must take place §  An independently created work does not infringe an idenVcal work §  Access must be proven Reproduc2on Original author: W. Fisher Reproduction – Substantive Similarity
§  Rogers v Koons §  Harney v Sony §  “Doisneau v. Red Envelope” Koons
Koons
Harney
Harney
Doisneau v. Red Envelope
Doisneau v. Red Envelope