CLASS 8
MECHANISM OF COPYRIGHT LAW
EVOLUTION OF AUTOMATIC NATURE OF COPYRIGHTS
COPYRIGHT LAW
RATIONALE FOR COPYRIGHT LAW (VARIOUS
THEORIES AND CRITICISMS
THE BASIC
FEATURES/PRINCIPLES OF
COPYRIGHT LAW
THE CONCEPT OF WORK
The concept of “WORK” comes out a lot from the Act
´“Work” means a literary, dramatic, musical, artistic or audiovisual work within the
meaning of the Berne convention for the Production of Literary and Atistic works , in the
form of text notation or related illustrations whither published or otherwise made
publicity available in any media
Section 2 of the Copyright Act [See also Section 3]
WHO IS AN AUTHOR?
Copyright is an exclusive property right that belongs to authors of any work by
the mere fact of its creation.
The Copyright Act defines an author as person who creates a work. The key
terms in the definition of copyright are as follows:
Work: that in which copyright can subsist;
Author
means—
(a) in case of any work other than an audio-visual work, the person who
creates the work; or
(b) in case of an audio-visual work, the person by whom arrangements for
the making of the work were undertaken;.
Section 2 of the Copyright Act
THE CONCEPT OF “INTELLECTUAL CREATIVITY”
The work must involve a person's ability to use one's imagination and knowledge to come up with new
and original ideas.
Section 3 of the Copyright Act
THE BENEFICIARY OF COPYRIGHT PROTECTION
´The beneficiary of copyright protection:
´First owner: the individual author
´Rights can be transferred to others.
”Works made for hire” (US and many common law
countries). -When a work is made for hire, the author is
not the individual who actually created the work.
Instead, the party that hired the individual is considered
both the author and the copyright owner of the work.
See Chapter 500, section 506 or Chapter 600, section 614 of
the Compendium of U.S. Copyright Office Practices
THE CONCEPT OF “IDEA” VS EXPRESSION
Copyright law does not protect ideas,
but the expression of ideas, the forms.
Copyright law is very much about the prevention of some taking unfair advantage of the creative
efforts of others.
“Copyright protection shall extend to expressions and not to ideas, procedures, methods of
operation or mathematical concepts as such.”
TRIPs Agreement, Article 9(2)
“No author may copyright facts or ideas. The copyright is limited to those aspects of the work –
termed ‘expression’ – that display the stamp of the author‘s originality.”
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547 (1985)
ABSENCE OF FORMALITIES
Copyright arises automatically- i.e. no registration requirements.
Section 25 Copyright Act: An author of any work shall, by the mere fact of its creation, enjoy
an exclusive property right in the work
The enjoyment and the exercise of these rights shall not be subject to any formality; such
enjoyment and such exercise shall be independent of the existence of protection in the country
of origin of the work. Consequently, apart from the provisions of this Convention, the extent of
protection, as well as the means of redress afforded to the author to protect his rights, shall be
governed exclusively by the laws of the country where protection is claimed
Berne Convention Article 5.2.
THE CONCEPT OF “FIXATION”
States may prescribe that a work is not protected until it is “fixed” in a material form.
Copyright Act Section 2 “fixation” means the embodiment of images or sounds, or of the
representations thereof, in a material form, sufficiently permanent or stable to permit them to be
heard, perceived, reproduced or communicated, including through a machine or device;
(It shall, however, be a matter for legislation in the countries of the Union to prescribe that works
in general or any specified categories of works shall not be protected unless they have been
fixed in some material form
Berne Art. 2.2.
THE CONCEPT OF “NATIONAL TREATMENT”
Copyright is governed by national laws
by means of international conventions such as the Berne Convention
Protection is given to authors from other countries according to principles of National
Treatment-non-discrimination
Authors shall enjoy, in respect of works for which they are protected under this
Convention, in countries of the Union other than the country of origin, the rights which
their respective laws do now or may hereafter grant to their nationals, as well as the
rights specially granted by this Convention.
Berne Art. 5.1.
THE CONCEPT OF “NATIONAL TREATMENT”
protection in the country of origin is governed by domestic law. However, when the author is not a
national of the country of origin of the work for which he is protected under this Convention, he shall
enjoy in that country the same rights as national authors.
The country of origin shall be considered to be
in the case of works first published in a country of the Union, that country; in the case of works
published simultaneously in several countries of the Union which grant different terms of
protection, the country whose legislation grants the shortest term of protection;
In the case of works published simultaneously in a country outside the Union and in a country of
the Union, the latter country;
in the case of unpublished works or of works first published in a country outside the Union,
without simultaneous publication in a country of the Union, the country of the Union of which the
author is a national, provided that:
when these are cinematographic works the maker of which has his headquarters or his
habitual residence in a country of the Union, the country of origin shall be that country, and
when these are works of architecture erected in a country of the Union or other artistic works
incorporated in a building or other structure located in a country of the Union, the country of
origin shall be that country.
Berne Art. 5.3 and 5.4.
THE CONCEPT OF ORIGINALITY
26.__(1) Literary, dramatic, musical or artistic work shall not
be eligible for copyright under this Part unless__
(a) it is original in character; or
(b) it is a derivative work.
(2) A work shall be eligible for copyright under this Act irrespective
of its form of expression, its quality or purpose for which it was
created.
(3) For purposes of this Part, a work is original if it is the product of
the independent efforts of the author.
Section 26 of the Copyright Act
THE CONCEPT OF ORIGINALITY
Peterson J stated the following about originality:
“The word “original‟ does not in this connection mean that the work
must be an expression of original or inventive thought. Copyright
Acts are not concerned with originality of ideas, but with expression
of thought in print or writing. The originality which is required relates
to the expression thought.”
University of London Press Ltd v University Tutorial Press Ltd [1916]
2 Ch 601, at 608-609
COPYING?
Copy: This means reproduction of work in a written form,
or in any form or a recording
or in any other material form,
but does not include a copy of an architectural work unless the object is a
building or a model.
Section 2 of Copyright Act
“copy” means an embodiment in material form, be it permanent or temporary, intransient
storage of a work or related subject matter
Includes the original form of a manuscript or similar object, fixation or recording
COPYING?
DISCUSSION
MAULIDI V MOTANI
[1991] 14 MLR 251 (HC)
THE ORIGINALITY TEST
Copyright is based on creative prowess represented by originality.
Much as it is important that the work should manifest sufficient skill, the test is that
of originality.
This means that the work should originate from the author.
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 - WHAT IS
WORTH COPYING IS PRIMA FACIE WORTH PROTECTING.
In America, at least, the “sweat and brow” test has been laid to rest.
Sheer effort alone is not sufficient to confer copyright.
Application of skill and judgment is essential, a position that is also reflected
in common law jurisdictions:
THE ORIGINALITY TEST
DISCUSSION
FEIST PUBLICATIONS IN V RURAL TELEPHONE SERVICE CO INC(1991) 111 S CT 1282
CCH CANADIAN LTD V. LAW SOCIETY OF UPPER CANDA
FIRST-HAND AND DERIVATIVE WORKS
´27.__(1) The following derivative works, in so far as they
constitute independent creations, shall be subject to copyright
protection as if they were original works__
(a) translations, adaptations, arrangements and any other
transformations of original literary, dramatic, musical and artistic
works; and
(b) collections of works, such as encyclopedias and
anthologies, which, by reason only of the selection or
arrangements of their contents, constitute intellectual creations.
(2) The protection of any work referred to under subsection (1)
shall be without prejudice to any other protection of a pre-existing
work or expression of folklore.
Section 27 of the Copyright Act
DERIVATIVE WORKS - EXAMPLES
´"Remember Me"-Lucky Dude
Daddy where ever you are remember me
In what ever you do I love you
Daddy where ever you are remember me
In what ever you do I love you
´Lucius Banda –1.Ulimbe Mtima Chonde
You left for the city many years ago ´2. Mundikumbuke
Promised to come back
And take care of us
Many years have gone by now
Still no sign of you Daddy
Mother died of a heart attack
Many years ago when she heard
That you were married again
Now, I'm the only one left
In the family
´Wandering up and down
The streets of Soweto
No place to call my home
I tried to find you
Many years ago
But the woman you're married to
Was no good at all
DERIVATIVE WORKS - EXAMPLES
´Heal Me Alpha Blondy
´Who can heal me?
Can you heal me now?
Who can help me?
Please help me Lord!
Ndichiritseni – Paul Chaphuka
Who can heal me? Ndaotchedwa ndi moto wa mabomba
Can you heal me now? Ndalenguka ndi njala
Who can help me?
Matenda andisiya mafupa okha
Please help me Lord!
Ndikhala ngati ndikulota
I've been burned by the sun,
Then wet by the rain.
I wonder if it's real,
Or mystic visions of my mind, OTHER EXAMPLES FROM THE CLASS
Heal me!
Can you heal me now?
Who can heal me?
Please help me Lord!
PRINCIPLES OF OWNERSHIP IN COPYRIGHT
There are four principles that must be used to determine ownership in
copyright:
If one person was the author, ownership vests in that person;
If two or more persons were authors, ownership vests in them jointly;
If there is no evidence to the contrary, the author or a work is the one whose
name is indicated on the work;
The ownership of work commissioned under a contract of employment or
other service vests in the principal, subject to the terms and conditions of
the contract.
The tests are course of employment or the commissioned service.
Copyright Act, sections 33, 34,
UNCOPYRITABLE WORKS
28.__(1) Copyright protection shall not extend to__(a) written laws and
decisions of courts and administrative bodies and to official translations
thereof;(b) news published, broadcast or communicated to the public by any
other means; or(c) a report made by a commission appointed by the
Government or any agency thereof and which the Government has made
available to the public.(2) Works that have not been made especially for use in
documents as mentioned in subsection (1), and which are quoted or
reproduced in the documents or made available through newsreports, shall be
subject to copyright protection.
See Feist Publications Inc v. Rural Telephone Service Co. Inc
WHAT ABOUT COMPUTER GENERATED WORKS?
EXPRESS NEWSPAPER V. LIVERPOOL DAILY POST
GENERATIVE ARTIFICIAL INTELLIGENCE AND COPYRIGHT LAW-CRS
WIPO-AI (ON GOOGLE DRIVE)
