COPYRIGHT

TUT 1

Who what why??

Intellectual property right protect intellectual prop
Awarded to HOLDER
To exercise entitlements
Creates a monopoly
1.

Receive compensation for creativity

2.

Incentive to employ talents

Restricted duration completed

.Passes to the public domain to freely be used by the public

How?
Requirements:
1.

"work" ITO s2(1);

2.

Originality;

3.

Material Form;

4.

Not contra bonos mores;

5.

first publication in SA or a qualified person s3

"work":
.Meet definition of categories (literary, musical, artistic)
.EG: literary work includes novels, poems and stories
not include official texts of a legislative nature
Originality:
.not mere mechanical work
.author must invest his own labour or skill in creating the work.
.objective test.

HAUPT SOFT COPY V BREWERS MARKETING

INTELLIGENCE:
Facts:
H a computer programmer worked at a programming company
H developed 3 computer programs along with C for the company.
The programs consisted of databases and tables containing written market
research and developed to sort and search through the info to help companies
market research.
called the Data Explorer program often produced incorrect results.
H did not create this program himself, but merely improved it.
C and H left the company, but C continued to write the programs for H.
C later wrote a program for B's company using the same source code that H's
program used.

Questions posed to the court:

Does the Data Explorer qualify as a computer program even produces
incorrect results?
Does H have copyright in the Data Explorer as he merely improved it?

Was it work?
YES Data explorer qualifies as a computer program
The definition: a set of instructions fixed / stored in a manner which, when used
directly / indirectly in a computer, directs its operations to BRING ABOUT A RESULT
Therefore even though the results were incorrect they were still results
Databases are literary works:
Literary work is computer generated created by a computer with NO human
assistance
If there is a human author, the work is computer assisted human author is
involved
In casu comp assisted there is a human author

Is it origional
Originality does not require you to be creative.
The test is simply:
Not copied; and
An exercise of the authors skill and judgment
This means that you can create something original by infringing and
improving someone else's copyrighted program Infringement but
improvement also creates new copyright for the infringer.

Who is the Author

Author of a computer program he who exercises control over the
process.
C did the technical stuff but under the instruction and supervision of
H.
H was thus in control.

Was there an infringement?

Test for infringement:
The test is not the quantity of source code used but the quality or
importance thereof.
Judgement: The appeal was upheld.
H has no copyright over C's databases but has copyright over the
Data Explorer program.
The copying of the small portion still constituted a reproduction of a
substantial part of the data explorer did amount to infringment
Interdict against using the new program was granted.

GALAGO PUBLISHERS
FACTS:
D wanted to write a book about his experience in the "bush war" in
Rhodesia, but he couldn't write well enough.
S wrote the book based on his ideas and G published it.
S and G later published a coffee-table book comprising pictures and
quotes from the book.
The case essentially deals with whether or not the coffee table book
was a copy of the original book.
D transferred copyright in the original book to E (hence why E is the
respondent).

 Q:
Did the CR vest in ideas of the book? YES
Was the coffee table book an infringing work? YES

HELD:
In order for copyright to vest, there needs to be some material
manifestation of it.
"there is no copyright in ideas, thoughts, or facts" might be
misleading.
An author's compilation of ideas and facts, as well as its
presentation can be the object of the copyright.
Even though the compilation is an idea, it can be protected
independent of the actual words.
In other words, even though the book was not slavishly copied the
underlying idea of the book was (the ideas that the book
embodied).

PETER - ROSS V RAMESAR:

2 academics at the UCT.
Ramesar + Ross joined in 2001.
agreed to publish an article based on collaborative research
Ross had to to draft such an article both were cited as authors.
relationship broke down - Ross then wrote a final article - wanted to publish.
Only Ross was cited as the author.
R did not contribute to the written formation of the article it is a product of his
scientific collaboration of joint authorship.
The first draft was reproduced almost in its entirety in the final article no original
skill or labours went into copying or reproducing the text.
Ramesars claim to authorship was based on the contention that he article
contains the greater part of the first draft to which he did contribute.

HELD:
There is no copyright in ideas BUT a literary work is most often a
vehicle for ideas Once ideas have been captured on paper
draft = was the production of an agreed collaboration with a
view to publishing a co-authored article.
scientific content was of greater importance than literary
expression thereof.
Mere pen pushing to narrow
Held that both the draft and the article were collaborative and
that Ramesar and Peter Ross were co authors of both pieces
of work.

Q1:
what does it mean there is no copyright in ideas, thoughts or
facts?

Suggested approach not

memo
Idea merely existing in someones mind vs idea being reduced
to paper
Ideas still part of thought process not constitute work not
protected
Once reduced to material form CR not vest in idea but in the
actual expression of the embodied idea
Ie the selection and compilation of facts

WAYLITE DIARIES V FNB:

Facts:
WD created a diary template which was then used by FNB.
WD argued:
infringement of CR
work is a literary or artistic work
Q:
Diary constitute a work ITO copyright?

Held:
Was it a drawing falling under Artistic work? NO
A drawing may = artistic work irrespective of the artistic
quality thereof.
BUT in terms of common sense layout NOT a drawing
in the ordinary sense of the word

Was it a Literary work? NO

Not all written words = literary work
Tables and compilations not qualify appointment
pages NOT literary work

Biotech laboratories
Facts:
Same insert as in a generic medicine as the original product
Held:
Falls under the class of literary works
Did amount to a copy right infringement

Nel v ladysmith
Wine label does amount to an artistic work

King vs SA weather service

FACTS:
Appellant claimed to have made the computer program on his
own time at home to assist him personally in the performance
of his duties as an employee
Ie not been part of his duties as a meteorologist to write
computer programs
not written in the course and scope employment and therefore
the CR vests in him not in his employer

HELD:
Appeal:
Sec 2(1)(d) CR act made during employment owner of the
CR vests in employer
Factual question what the contract says and circumstances
under which the work was created
court a quo correct in finding it was made in the course of
appellants employment

Klopper criticism

A causal connection between the the work and his employment is not
sufficient.
The employer must exercise control over the creation of the work (Haupt
Case).
Emphasis must be placed on the contents of the agreement; did they agree
that he would give up copyright?
However, despite the criticism, the case sets a precedent and thus B, and not A,
will be the holder of the copyright.
A remains the author, but B is the holder. Section 3(1) only requires that the
author is a qualified person. The fact that B is not a qualified person does not
matter.
B would be able to enforce his copyright (because of his employment contract).