South Africa: What Engineers Need To Know About Copyright

Last Updated: 13 August 2012
Article by Dina Biagio

Copyright is not just for artists.  While it can apply to products of craftsmanship or the performing arts, it can also apply to works created in an engineering context, like computer programs and engineering drawings.  In other words, if you are an engineer it is important that you know some things about copyright, like the following:

  1. Generally, copyright subsists in tangible things that are the product of someone's skill or labour.  In legalese, this "tangible thing" is called a "copyrighted work". You will probably deal mostly with artistic works (e.g. engineering drawings, photographs, flow diagrams, concept sketches, etc.); literary works (e.g. the text of user manuals) and computer programs (e.g. machine, object and source code – in fact, any instructions used to direct the operation of a machine, like the code for CNC machines used in the manufacture of components).  
  2. Copyright subsists automatically and does not need to be registered.  Sometimes a copyright notice is applied to a work but this does not impart copyright to the work.
  3. A copyrighted work can be 2-dimensional (for example, an engineering drawing, photograph, flow diagram or text in a report or manual) or 3-dimensional (an actual component, for example).
  4. Copyright lasts for a very long time (like 50 years after the death of the author but the actual time period differs depending on the type of work).  So copyright probably subsists in all works that you will deal with on a day-to-day basis.
  5. As the name suggests, COPYright prevents COPYing of an original work.  It does not entitle the owner to prevent someone else from independently creating the same work.  This means that the original work must be 'closely referenced' when creating the new work, for there to be an infringement of the copyright in the original work.  But what does 'close reference' mean? As a general rule: if the original work is 'at your left elbow' when making the new work, you are probably infringing the copyright.  Conversely, if you have an original work, but you lock it away in a storeroom before starting on your own work, you are probably not infringing.
  6. Adapting is also prohibited.  Adapting a copyrighted work could mean making a 3-dimensional copy of a 2-dimensional work.  In other words, if you make a component from someone else's engineering drawing, it is an infringement of the copyright in that drawing.  If you have the same product as a German company and you translate some sections of its German user manual into English for your own product, it is an infringement of the copyright.

So to summarise:

ACTION

PROBABLE VERDICT

You photocopy an original drawing.

Copyright infringement

You redraw the original drawing, with the original drawing at your left elbow.

Copyright infringement

Having seen the original drawing, you lock it away and create your own drawing.

No copyright infringement

You make a component from an original drawing.

Copyright infringement

You make a translation of an original work

Copyright infringement

  1. There is a reverse engineering exception in our law when it comes to artistic works of a technical nature. An unauthorised 3-D copy/adaptation of an original component will not constitute an infringement of the copyright in that original component, provided that: the original component was made available to the public by the copyright owner (or with its consent); and the original component has primarily, a utilitarian purpose, and is made by an industrial process. 

    In other words, you are allowed to "reverse engineer" someone else's component by manufacturing a 3-D copy/adaptation of that component.  The copyright legislation only specifically authorises the making of a 3-D adaptation from (freely available, utilitarian and industrially produced) 3-D works but despite the wizardry of engineers, this doesn't (usually) happen with the wave of a magic wand.   Typically, the component is measured up and drawings are created from these measurements.  A new component is then manufactured from the drawings.  In effect, when reverse engineering, a 3-D component is created from a 2-D adaptation of a 3-D original component, and the 2-D work is not specifically authorised by the copyright legislation.  

    Unfortunately, the question of whether the intermediate drawings fall within the reverse engineering exception and therefore whether they can be made and used in the reverse engineering process has never been considered by our courts.  What is clear however, is that to even have a shot at being legal, drawings created in a reverse engineering process can only be used for the purpose of making the 3-D component, they could not, for example, be published in a book, tender invitation or used for any other purpose.
  2. Copyright infringement can be difficult to prove because it is not enough for a plaintiff to show mere similarity between two works, he has to prove actual copying.

    If you are creating an original copyrighted work it helps to include fingerprints that could help you prove copying if the need arose.  For example, you could include random indicators, which if copied by an infringer  would make compelling evidence of copyright infringement.  These could be remark lines in a computer program or a watermark on a drawing, for example.

    Conversely, if you are accused of copyright infringement and can't produce any evidence to show reverse engineering or that your works were created independently, a plaintiff may have a chance of tipping the scale of probability in his favour.  It's a good idea to give drawings back to their owner if you do not need them for something which the owner has authorised you to do. Also, when embarking on a process of reverse engineering, document every stage of the process to make sure that, if the need arises, you can produce evidence to show that you are not guilty of copyright infringement.

Let's look at some practical examples:

ACTION

PROBABLE VERDICT

You hand a freely-available OEM manual containing component drawings to a manufacturer. 

No copying so no copyright infringement. 

You hand a drawing acquired from someone else to a manufacturer.

Again, there is no copying and therefore no copyright infringement.  But if you pass a drawing that was provided to you under (even tacit) conditions of confidentiality (in other words a drawing that is not freely available), you will be in breach of this agreement.  Also, by providing a manufacturer with someone else's drawing you may be setting the manufacturer up for copyright infringement, if the intention is that the manufacturer will manufacture from the drawing. 

You make a photocopy of the OEM drawing and hand this to the manufacturer.

Go back to START and do not collect R200.

You show the OEM drawing to a manufacturer for the purpose of explaining how the component works, etc. 

No copying  so no copyright infringement.

The manufacturer produces a component, from the OEM drawing.

The manufacturer is infringing the copyright in the OEM drawing (despite the fact that the drawing may be published in the OEM's manuals, which are freely available).

The manufacturer puts the drawing aside, then creates its own drawing and manufactures the component from its own drawing.

No copyright infringement (but the manufacturer may have trouble proving that it created its own drawing while it was in possession of an identical one). 

You deliver a faulty component to a manufacturer for it to reverse engineer a replacement.

No copying so no copyright infringement.

You provide access to a third party to inspect a faulty component for the purposes of reverse engineering a replacement.

No copying so no copyright infringement.

You include the OEM drawing in an invitation for third parties to quote for reverse engineering a replacement. 

You are reproducing the OEM's drawing in your tender invitation and this is a copyright infringement.

You make a drawing from the faulty component through reverse engineering, and then include this drawing in an invitation to tender for the manufacture of a replacement.

 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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