South Africa: Copyright: Joint Ownership And Databases

Last Updated: 8 February 2018
Article by Ilse Du Plessis

A South African judgment dealing with joint ownership of copyright in databases has recently come to light. The judgment was handed down almost a year ago, but it seems to have slipped under the radar. This judgment will, however, be of interest to those involved in IP.

The case is The Philanthropic Collection (Pty) Ltd v Girls & Boys South Africa. The applicant (the "organiser") in this case organises a charitable event that takes the form of a sleep-out – business leaders are asked for donations and they're requested to sleep outdoors on a winter's evening in order to get a better understanding of the plight of the homeless. The first sleep-out happened in 2015 and the proceeds went to the respondent (the "charity"). 

In the process of organising the first sleep-out, the organiser established an electronic database, which came about because every donor had to register on the organiser's website using an online form. Donors were also able to pay through the website with a credit card. One thing that the organiser seemingly hadn't foreseen was that certain companies would want to pay by electronic funds transfer ("EFT"). To accommodate these companies, a form was created and loaded onto the website. This form would be downloaded, completed and returned together with proof of the EFT payment. The information provided by these donors would then be added to the electronic database. This form was, in fact, created by an employee of the charity, and this employee was also responsible for inputting the donors' information into the electronic database.

Another issue that came up with the first event in 2015 was that the organiser didn't yet have the tax-exempt status of a public benefit organisation. Aware that people are more likely to be charitable when tax breaks are involved, the organiser and the charity agreed that all donations would be paid directly into the bank account of the charity, which had the necessary tax-exempt status and was able to issue tax-exemption certificates. In order to do this, the charity made use of the electronic database, as well as the information that its employee was adding manually. 

In 2016 and 2017, the organiser arranged further sleep-outs, but on these occasions, the charity was not a beneficiary. In 2017, the charity started phoning people who had donated money in 2015 and asked them for donations. This upset the organiser, who sued the charity for infringing its copyright in the database. The charity defended the court application, arguing that it was a joint owner of the copyright. 

Judge Modiba kicked off by making the point that a database is protected under South African copyright law as a "literary work". This somewhat misleading term is defined to include "tables and compilations of data stored or embodied in a computer". 

The judge went on to say that in order to enjoy copyright protection, a literary work must be "original". There have been a number of South African decisions on originality. In Klep Valves (Pty) Ltd v Saunders Valve Company Ltd, the court said that for the purposes of copyright, "all that is required is that the work should emanate from the author himself and not be copied." In Haupt t/a Softcopy v Brewers Marketing Intelligence (Pty) Ltd and Others, the court held that a work is original if it has not been copied from an existing source, and if its production required a substantial degree of skill, judgement or labour. 

The judge said that in terms of the Copyright Act, 1978, the author of the literary work is the owner of the copyright unless the copyright has been assigned and, if generated by a computer, the author is the person who undertook the arrangements necessary for the creation of the work. In this case, the organiser was the author of the database. It had conceived the idea of a sleep-out and this had led directly to the creation of the database. It had also made all the arrangements for the creation of the website. 

On the other hand, the contribution of the charity's employee did not meet the originality test, as the form that its employee had created for EFT payers was substantially the same as the online form created by the organiser for credit card users. The creation of this additional form involved "no substantial degree of skill, judgement or labour". The judge went on to make a number of further points: 

  • the form for EFT payments was "ancillary" to the database: "but for its incorporation on the website the respondent would not have had the means to collect the data it claims to have collected in the manner it collected it ... for that reason it would be absurd to separate the manual form from the website."
  • even if the employee had innovated the idea of EFT payments, this did not elevate the charity "to the status of a person who made arrangements necessary for the creation of the website". The charity needed "the concurrence of the applicant", and without this it "would not have been able to collect the data it claims to own".
  • the purpose of the EFT innovation was simply to make it possible for donors to pay by EFT and get tax exemption certificates, it was not to create a database. 
  • the charity was a beneficiary of the 2015 event and not a partner of the organiser. The charity only stood to benefit, so its claim to being a partner was "absurd". 

The judge concluded that giving the charity the status of an author of the database on the basis of data manually added to the database that is automatically generated from the website would be an "overbroad interpretation". The organiser was the sole owner of the copyright and the charity had infringed this copyright. The judge therefore granted an interdict (injunction). 

If there's a lesson to be learned from this case, it's this: copyright issues need to be considered and clarified right from the start. 

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions