In general, copyright protects the owner of an intellectual creation developed by an author.
The South African Copyright Act of 1978 sets out who is an author, who owns such a creation, the rights of such an owner, the extent of protection offered, the types of works protected, acts that constitute infringement, duration of protection, matters which do not constitute infringement and consequences that flow from infringement.
Provision even appears to be made for situations where; “a work shall not be ineligible for copyright by reason only that the making of the work, or the doing of any act in relation to the work, involved an infringement of the copyright in some other work” (Section 2(3) of the Copyright Act of 1978).
In order to be protected against infringement, works need to be original and in the case of literary, musical, artistic, cinematographic, sound recordings and published editions, are to be; “written down, recorded, represented in digital data or signals or otherwise reduced to a material form.” “Broadcasts must have “been broadcast” and programme-carrying signals must have “been transmitted by satellite” (Sections 1, 2, 2A of the Copyright Act of 1978).
The term “original” is not defined in the legislation. South African Courts have however tried to define the concept. In Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645, the Court commented that “actual time and effort expended by the author is a material factor to consider in determining originality, it remains a value judgement whether that time and effort produces something original”.
The concept of time and effort was also referred to in Moneyweb v Media 24 2016 (4) SA 591, where the Court said; “time and effort spent must involve more than a mechanical or slavish copying of the existing material” and “there must be a sufficient application of the author’s mind”.
It appears therefore that the test is subjective and would involve a value judgment by the Court as to whether there is sufficient application of the author’s mind.
It may be argued that, having regard to Section 2(3) of the Copyright Act of 1978 referred to above, an Author can create something original even if he infringes other works and as such, it appears that actually, independent thought or a certain degree of independent effort is protected.
The above commentary is brief and you must consult an Attorney about any concerns you may have surrounding Intellectual Property, including Tax concerns.
Ismail Ayob and Partners practice in the areas of Trade Marks and Copyright and would be happy to assist you. Contact Ismail Ayob or Zayd Ismail Ayob for a consultation.