Only the copyright owner may do, or authorise the doing, of the following in respect of the work: reproduce it in any manner or form; publish it; perform it in public; broadcast it; transmit it in a diffusion service; or adapt it. Anyone who performs any of these actions without permission in respect of the work has infringed copyright.
Logos are often registered and protected under trademark law, and trademarks always are. So we are not talking about copyright infringement here, but trademark infringement. The owners of logos and trademarks usually guard their intellectual property very stringently, for obvious reasons.
By signing a contract with a publisher, you give him or her exclusive licence to publish your work. An exclusive licence means that only the publisher with whom you have contracted may publish your work.
Copyright is not infringed by any fair dealing with a literary work for the purposes of the personal or private use of the work by the person making the copy. What is ‘fair’ in any given situation will always depend on the circumstances of that situation.
No, it’s not correct. The Copyright Act says nothing about any percentage. 10% may be ‘fair’ but then again, it may not, since the test for fair dealing is qualitative as well as quantitative.
The regulations to the Act offer certain concessions for educational institutions and for non-profit libraries. These include a defined number of multiple copies strictly for classroom use or discussion, but exclude compilations.
Can I put a photocopy of the article on the reserve shelf in my educational institution’s library for each student to copy under ‘fair dealing’?
No.
Although each student may make a ‘fair dealing’ copy, 100 students each making a copy results in 100 copies, whereas fair dealing is intended to apply in the case of the single copy made by the person using the work.
You may only legally make them under licence. A licence for reprographic reproduction (photocopying) of up to 10% or one chapter of a book, or one article from a serial publication, may be obtained from the Dramatic, Artistic and Literary Rights Organization (DALRO) (Tel: 011 489 5000 or e-mail dalro@dalro.co.za) or from the publisher of the work to be copied.
The photocopying of whole books by students as a substitute for buying them is not a licensable activity. DALRO only licences extracts for internal use and in instances where the book itself would not have been bought anyway.
You may print out a copy for your personal or private use but you may not further reproduce it for students without permission from the rights’ owner. Fair dealing applies in the digital as well as the analogue environment.
Newspapers and magazines usually administer their own reprographic reproduction rights. Your first stop should therefore be the publication itself.
No. ‘Out of print’ does not necessarily mean ‘out of copyright’.
Yes, Shakespeare is not only very much dead, but also very much out of copyright! However, in every published work there are two copyrights: copyright in the content (which belongs to the author) and copyright in the published edition (which belongs to the publisher). So if you make multiple copies from Penguin's edition of Hamlet you have to pay Penguin for the published edition. You have to remember, though, that just because the author is dead, it doesn't mean his work is out of copyright. Copyright lasts for 50 years after the death of the author. Copyright in the published edition lasts for 50 years from the date of publication.
Typing from a book is a form of copying. However, it is not an infringement to make a copy in this way for your own personal use. It only becomes infringement if you then make multiple copies from your copy, as the typographical layout will be copyright protected.
It is wrong to imagine that publishers and authors exploit a work only when it is in print, or that sales are the only means of exploiting a work. Long after the book is out of print it may still generate revenues for its creators through the sale of, for example, translation rights, film rights – and photocopying rights.
It is not necessary to own copyright in a work in order to license its reprographic reproduction. Copyright consists of a whole bundle of rights: the right to reproduce a work; to publish it; to publish it in a certain territory, or in a certain language; to adapt it (e.g. make a film script from a book or turn a long and complex novel into a easy reader for adults); to include it in an anthology of short stories and poems, and so on. In order to license a photocopy, a person or entity other than the copyright owner needs only to possess the right of reproduction.
It enters into agreements with authors and publishers whereby it is mandated to administer this right.
1. A publisher who wishes to take action against unauthorized copying of a book should rely primarily on the copyright in the published edition.
2. The infringement of the copyright in a literary work or a published edition can give rise to a civil law claim and in most instances to a criminal offence, under the Copyright Act. In both instances the legal action can be instigated by the copyright owner or by an exclusive licensee. In civil proceedings an interdict restraining the unlawful conduct, damages, delivery-up of infringing copies and various other forms of ancillary relief can be obtained. In the case of criminal copyright infringement the State can prosecute the offender and the court can impose a penalty of R3 000 or five years imprisonment, or both, for each infringing article, in the case of a first offence.
3. If a book which is reproduced features a registered trade mark, for instance the publisher’s trade mark the sale of an unauthorized copy can also constitute trade mark infringement under the Trade Marks Act.
4. The Counterfeit Goods Act could render the making and sale of unauthorized copies of a book an act of dealing in counterfeit goods. The Counterfeit Goods Act gives wide ranging powers of search and seizure to inspectors (police officers, customs officials, and the inspectors appointed by the Department of Trade and Industry). The Counterfeit Goods Act has certain advantages over the Copyright Act: the mere possession of counterfeit goods in the course of trade is a criminal offence, whereas under the Copyright Act in equivalent circumstances proving that the goods have been made and/or sold by the accused is necessary before an offence can take place
5. When a copy shop makes an unauthorized copy of a book, and assuming that the book features or bears the publisher’s registered trade mark, that copy shop perpetrates one or more of the following unlawful acts:
6. This will entitle the publisher to institute civil proceedings for copyright infringement and/or trademark infringement and to lay a criminal complaint of copyright infringement and/or dealing in counterfeit goods.
7. If action is to be taken evidence must be capable of being produced to show that unlawful conduct has taken place. In practical terms this means that there must be evidence of the production and sale of at least one unauthorized copy. This can be obtained by means of trap purchases.
8. The recommended modus operandi is that once the first unauthorized copy has been purchased, and evidence relating to the transaction for the purchase has been obtained, a decision should be taken as to whether civil and/or criminal avenues of enforcement should be pursued.
9. If the civil avenue of enforcement is chosen, a letter of demand should be written to the infringer setting out the nature of his infringing conduct and requiring a written undertaking that the unlawful conduct will be discontinued and no further such conduct will be perpetrated in the future. Compensation might also be claimed as well as delivery-up of all other infringing copies in the infringer's possession. If satisfaction is not obtained by means of such a letter, consideration should be given to instituting civil infringement proceedings in the High Court. In such proceedings an interdict, damages, delivery-up of infringing copies, and costs should be claimed. While dispatching a letter of demand is a speedy and inexpensive process, following up that letter of demand with the institution of civil law court proceedings can be both time consuming and expensive. The nature of the infringer and the seriousness of the infringement will be factors that will influence whether civil law litigation is pursued.
10. In the event that a criminal prosecution is to be instigated, a complaint should be made to the police or to an inspector appointed under the Counterfeit Goods Act. This complaint must be supported by an affidavit made on behalf of the publishers, which includes evidence of the existing infringement, i.e. the purchase of an unauthorized copy that has already been made. With a view to obtaining better evidence, and evidence of further unlawful acts, it is desirable that a further trap order or purchase should be instigated. It is recommended that, with the complicity of the police or inspector, an order for multiple copies of the book should be placed with the copy shop with the request that the goods be available for collection later. When the goods are due for collection a raid should be executed under the Criminal Procedure Act, and/or the Counterfeit Goods Act. All going well, that raid should bring to light multiple copies of the book in the possession of the infringer, awaiting sale. It is in this situation that the Counterfeit Goods Act is particularly useful because the mere possession by the infringer of the unauthorized copy will constitute a criminal offence; unlike under the Copyright Act, it will not be necessary to show that the infringer has made the copies and/or has offered them for sale.
11. Once the raid had been executed, the police will take the criminal prosecution further and the role of the publisher will be confined to providing appropriate evidence to support the prosecution when the matter comes up for trial. After the results of the raid have been achieved, however, it is also possible to institute civil infringement proceedings.
12. Before any action is taken, the enforcement options should be discussed with a knowledgeable attorney. The instigation of a criminal procedure and/or the issuing of a letter of demand or the commencement of civil law proceedings should be undertaken by that attorney who will advise on which option is the most suitable or appropriate for the particular case.
13. The advantage of commencing a criminal procedure is that the raid can take place and the infringing goods can be seized and placed in safe custody expeditiously, perhaps even within days of the initial purchase being made. However, after the raid and seizure of the goods is over, the further prosecution of the criminal case can be extremely drawn out and frustrating as one is entirely in the hands of the police and prosecutors as to the efficiency with which the criminal procedure is pursued.
14. Civil court proceedings generally proceed more expeditiously than a criminal prosecution and can be dealt with more efficiently. However, they are very costly and can be time consuming as well. The distinct advantage of civil proceedings is that their conduct is under the control of the plaintiff, unlike in the case of a criminal prosecution.
Distributed with kind permission from -Ms Monica Seeber & Dr Owen Dean
14/9/06
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