26 April is World Intellectual Property Day. We asked Dr Owen Dean, who specialises in trade mark litigation, copyright law, competition law and entertainment and media law, some questions about copyright and intellectual property:
Q: In a nutshell, what balance of interests does copyright seek to attain?
A: Copyright seeks to provide an incentive to the creative person (the “author”) for her to create more and better works for the benefit of society at large. It does this by affording the author a qualified monopoly in the use of her works (enabling commercial exploitation) so that she might derive remuneration or reward out of his product. The qualified monopoly is limited in time (the term of copyright – in general terminating 50 years after a specified event) and when the term expires the work falls into the public domain and is free for use by all. Copyright seeks to attain a balance between to proprietary rights of the individual and the public good in order to provide both the incentive to the author, and at the same time contribute to and enhance the general pool of public knowledge and resources.
Q: How does intellectual property contribute to the economy in a developing country?
A: It grants proprietary rights in the products of the intellect to creative persons, enabling commercial undertakings and activities to be pursued to create wealth. In the case of copyright even the most simple works of art, writings, music and so forth can enjoy this protection. Industries can be set up on the strength of these products. They can be commercially exploited internationally by means of exports of physical goods embodying the IP, or by means of granting licences to foreign entities for local exploitation in foreign countries. Conversely, foreign IP products can be commercialised in South Africa by local entities with the collaboration and assistance of the property owners, who will be happy to entrust their properties to local businesses because they are secure in the knowledge that such products are protected. This entails technology transfer (licensing) and introduces facilities and know how into the country. In the absence of IP protection, a foreign IP owner would be reluctant or unwilling to venture commercially with their products into the country
Q: Why is it important for publishing companies, institutions of higher education and other copyright holders to protect their copyright?
A: Without copyright, the works of publishers and the like can be disseminated without the generation of any revenue flow back to them. Copyright provides the structure and wherewithal for works to be commercially exploited. For instance, the books of a publisher that are not protected by copyright can be freely reproduced and distributed by third parties without the publisher enjoying any income from these activities. Publishers invest considerable resources in order to create and manage works, and, like any business, their survival depends on their ability to recoup some return on investment. Copyright enables the publisher to control and derive revenue from the reproduction and distribution of its works because it gives the publisher exclusive rights in respect of these activities.
Q: Broadly, what is the nature of the proposed amendments to the South African Copyright Act, and what will be the practical effect of these amendments?
A: The proposed amendments are legion and cover a very wide range of diverse issues. Many of them are misguided and are likely to be still-born in their effect. I presume that your question relates to those amendments which are more relevant to the publishing industry and I will proceed on this premise.
The proposed Amendment (at this stage only a very poor draft has been published) covers, inter alia, the following: It creates new and wider exceptions to the scope of copyright protection in works, particularly in the field of education, which means that copyright works can be reproduced without the authority of the copyright owner and she will derive no revenue from such uses of her works (the issue of so-called “fair use” or “fair dealing”); provision is made for the use of so-called “orphan works” (i.e. works in respect of which the author is deceased and/or unknown) – the State will become the copyright owner in respect of such works and they will enjoy copyright in perpetuity; it is sought to limit the effect of an assignment of copyright to a period of twenty-five years; special exceptions to copyright protection are created in the case of blind persons and persons with other disabilities; steps are taken to obviate the removal of copy protection devices built into electronic versions of works which inhibit their being copied; provisions (welcome in principle) to bring the Act up to date with respect to the circumstances of the internet are introduced.
In general, the amendment seeks to water down the strength of the position of the copyright owner and to alter the balance between the property rights of the copyright owner and the interests of the public at large, distinctly in favour of the latter.
Q: In your view, will the amended Copyright Act provide a healthy balance between commercial interests and basic constitutional rights (such as the right to education)?
A: As mentioned in response to the previous question I do not believe that the amendment provides a healthy balance between the competing interests. The balance will be weighted too much in favour of the public, particularly in the sphere of educational works.
Q: On an international level, what are the key, emerging, new-world issues which arise in relation to copyright?
A: The international discourse on copyright is preoccupied with the application of copyright law to the internet, and the tension between the copyright owner’s proprietary rights and the widespread availability of works over the internet and the ease of access to them. This gives rise to the issue of whether the use of works through the medium of the internet should be accepted from the scope of copyright protection, and if so, to what extent. This links in with the whole question of so-called “fair use” or “fair dealing”. The situation on the internet ties in with another topical issue, namely counterfeiting and pirating copyright products and the difficulty in enforcing copyright owners’ rights in this context.
Q: The Lion King case was a very significant win. Please provide a short synopsis of the issues which were at stake, and the outcome of this case.
A: This case highlighted the inequity that can occur when an author assigns his copyright in work at a stage when there is no appreciation of the true value of the work or the significance of the assignment, and it subsequently transpires that the work is worth an enormous amount of money, out of all proportion to the benefit (if any) that accrued to the author at the time of the assignment.
In the particular circumstances of this case, the situation was compounded by the race and poor economic circumstances of the author/assignor. Solomon Linda, the author of the song Mbube, assigned away all his right in the song for a pittance. The song subsequently evolved into the major hit song ‘The Lion Sleeps Tonight’ which generated a fortune in money. Solomon Linda and his family (after his death in 1962) benefited nothing from this bonanza.
In the new political dispensation and environment after 1994, the fact that his family were in penury while the song was making a fortune became something of a political issue. The problem was that Solomon Linda had, with the assignment of copyright, divested himself of all rights or claim in respect of the song and on the face of it nothing could be done to rectify the situation. However, by a strange virtually unknown historical quirk of copyright law in South Africa and throughout the former British Empire, the assignment in question was governed by a provision to the effect that twenty-five years after Linda’s death (i.e. in 1987) the ownership of the copyright in Mbube reverted to the executor in his deceased estate to be distributed to his heirs. (This provision created a so-called “reversionary interest” in the song in favour of Linda’s estate). In the meantime ‘The Lion Sleeps Tonight’ had been incorporated by Walt Disney into the stage show and movie The Lion King.
On the strength of the fact that the copyright in Mbube had vested in the Linda estate since 1987, this meant that the inclusion of ‘The Lion Sleeps Tonight’ in The Lion King without the Estate’s permission amounted to copyright infringement. It was decided that the Executor in the Estate would sue Disney for copyright infringement in the South African Court. The case inter alia claimed damages flowing from the unauthorised use of the derivative of Mbube in the production.
Shortly before the case was due to go to trial, a settlement was reached that entailed that Disney and their collaborators would pay a lump sum to the Estate by way of damages for past infringements of copyright and would pay royalties for all future uses of ‘The Lion Sleeps Tonight’ throughout the world. This was a very satisfactory outcome for the Linda estate. The provision of copyright law relied upon by the estate was, however, repealed in 1966 (without affecting vested rights) and is no longer part of our law. The case may, however, be the rationale for the proposed limit of assignments to twenty-five years referred to in paragraph 4 above.
Dr Owen Dean (Consultant) at Spoor & Fisher South Africa is also co-editor of Dean & Dyer Introduction to Intellectual Property Law, published by Oxford University Press Southern Africa