South Africa: Copyright: As Relevant As Ever

Last Updated: 12 June 2017
Article by Rachel Sikwane

Most Read Contributor in South Africa, July 2017

Copyright is a highly important area of IP law. Yet, it's also an area that's often ignored and misunderstood, partly because it generally doesn't involve registration, and partly because of the uncertainties created by the digital age.

For those who have little experience or knowledge of copyright law, it's an area of law that protects a wide range of things (referred to as "works"), including written works, artworks, musical works, sound recordings, films and computer programmes. In most countries (including South Africa), no registration is required, and the right comes into existence as soon as it is put into a material form – having a song in your mind does not give you copyright; you have to write it down or record it in some form. Even the most mundane work may enjoy copyright protection, provided that some effort went into creating it.

Copyright lasts for a very long time – in South Africa, the term is 50 years, and this runs from various dates such as the date of release or the date of death of the creator, depending on the type of work. The owner has the exclusive right to do various things, such as make copies of the work, and this right is infringed if anyone copies the work, or even a substantial part thereof, without consent. What's critical, however, is that there must be copying – coincidental similarities are not an infringement.

Crash course over, let's look at a few recent copyright cases:

Michelle Obama: The first involves a mural of former US first lady Michelle Obama as an Egyptian queen. The artwork appears in Chicago across the road from the school that Michelle Obama attended. The claim is that the mural is a copy of an artwork that was shared on Instagram. The creator of the mural claims that the person who created the image that was put on Instagram had herself copied it from another source, a photograph. This raises an interesting issue: can there be copyright in something that may itself have infringed copyright? The answer seems to be yes if sufficient effort went into that second work, if the second work is "transformative".

The case is ongoing, but it raises another issue, the sheer availability of works that enjoy copyright. Jessica Meiselman, in a piece entitled "The Michelle Obama Mural Controversy", says that "with billions of images circulating online, determining a work's true source can be difficult and the rules around reproduction murky."

Ed Sheeran: It's well-known that the singer was sued for copyright infringement. The case related to Sheeran's song Photograph, which, it is alleged, is a very close copy of a song called Amazing by Matt Cardle. The case was recently settled, but the details of the settlement have not been disclosed. We do, however, know that the initial claim for damages was USD20-million. We also know that the lawyer representing the claimant was the same lawyer who represented the family of Marvin Gaye in its case against Robin Thicke and Pharrell Williams – this case related to the song Blurred Lines, which allegedly infringed the copyright in a song called Got to Give It Up, and it ended with a USD7.4-million settlement. It's hard not to be struck by the appropriateness of the four song titles – Photograph, Amazing, Blurred Lines and Got to Give It Up!

Staying Alive: Most readers will be aware that music copyright is generally administered by collecting societies, and requests for permission to use (publicly perform) music are generally channelled through them. In most cases, royalties will be involved, but in some cases, fees are waived.

An example of this was discussed in a recent BBC report, which said that German rights organisation Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte ("Gema") had announced that German schools teaching children CPR will, in future, be able to use the Bee Gees hit Staying Alive without having to pay any fees. If you're wondering why they would want to do that, it seems that the British Heart Foundation has declared Staying Alive to be one of the better songs for getting hearts re-started, not simply because of its life-affirming lyrics, but also because of the beat. Other goods songs, we're told, are Yellow Submarine by The Beatles and Like a Prayer by Madonna. The report wryly notes that Highway to Hell by AC/DC – with its 100-120 beats per minute – is another good one, although the title isn't particularly optimistic!

A new Bill: In South Africa, in addition to a number of recently reported cases relating to copyright, the Copyright Amendment Bill, which we have written about before, has been published, and interested parties have been invited to submit written comments on the Bill by 19 June 2017. The purpose of the Bill is to, among others, provide for accreditation and registration of collecting societies, for the procedure for settlement of royalty disputes and for management of digital rights.

Copyright is indeed an organic and highly relevant field of law.

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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