QUESTION 1
I INTRODUCTION: NATURE OF WORKS
To begin with, the nature of the works in question must be determined to assess whether it falls
within the scope of protected works under s2 of the Copyright Act 98 of 1978.1 In context of facts
at hand, an obituary is protected under literary works, as it is a written report of someone
someone’s death that is published in magazines, newspapers or funeral websites and a photograph
is protected under artistic works the definition of an artistic work includes photographs.2
II ORIGINALITY.
After determining the nature of works in question, the next step is to establish if the work is
original. The requirement of originality carries key components in which the author must satisfy
to claim the work as the originator and this includes personal judgment, skill and/or labor. In that
regard, s2 (2) (a) of the Act, requires the work to be a product of effort or skill for it retain a new
original character. Furthermore, this requirement has been endorsed and interpreted by South
African and Canadian courts. In Waylite Diaries CC v First National Bank 1995 (1) SA 645 (A)
649, the court dissented that there should be the application of knowledge, skill and labour, and
that must produce a result which is not merely common. To add, in Moneyweb (Pty) v Media 24
[2016] ZAGPJHC 81, the court denoted that where the work in question consist of an existing
subject matter, the court must put into consideration the author’s sufficient skill and labor to prove
the work is original. In Haupt t/a Soft copy v Brewers Marketing Intelligence (Pty) Ltd 2006 (4)
SA 458 it was held that work is considered original only if it has not been copied from existing
material and if the author has exercised great skill, judgement and labor in creating the work.
To further persuade, Canadian courts also hold a similar view in respect of what qualifies as
original works. In CCH Canadian Ltd v Law Society of Upper Canada 2004 SCC 13, [2004] 1
SCR 339 as well as Thomson v Afterlife Network Inc 2019 FC 545 it was indicated that for a
copyright to be original, the work must not be copied from existing material, the author must
exercise of skill and judgement, and in such a manner that the exercise is not entirely mechanical.
1
2. (1) Subject to the provisions of this Act, the following works shall be eligible for copyright(a) literary works;
2
s1(c)(iii) of the Copyright Act
However to clear the confusion regarding the words “must not be copied” courts implied that one
must not directly take the existing material and reproduce as his/hers but may develop an original
idea from an existing material. This is evidenced in Klep Valves (Pty) Ltd v Saunders Valve Co
Ltd 1987 (2) SA 1 (A) where the court denoted that originality applies to the skill and labor in
execution and not the idea.
Having tabled the requirement of originality, it is clear that the author must prove to the court that
they played a pivotal role in the creation of their work and it must surface as result of their skill,
labor and judgement.3 In relation to the facts given, Shreya lies with the onus to prove that her
works are original. She must adduce evidence that proves she used her own skill and labor to take
the photograph and write the obituary using her own choice of words. To support this, the court in
Afterlife illuminated that the satisfactory evidence adduced by the applicant included proof that
they had written the obituaries choosing their own choice of words to convey the message of life
and funeral arrangements of the deceased. Subsequently, it included proof that they were
responsible for the composition of the photographs. Conclusively, the above implies that original
works are a consequence of an exercise of skill, judgement and/or labor, thus Shreya must prove
their existence, in the creation of her works to claim its originality.
III OWNERSHIP
The question of ownership of copyrights in the obituary and photography must not be ignored but
must not be dwelled on too much either. It has to be established first whether Shreya assigned all
her copyrights in her works to Doves when they both agreed to publish it on Doves’ site. As a
result, the terms and conditions in the contract signed between her and Doves, must be brought to
attention to determine the owner of the copyright in the works allegedly infringed if it ever existed,
but if not then Shreya retains the copyrights in the works. However, due to inconclusive facts given
and for the purposes of this essay, the general rule that the author of the work is the owner of the
copyright in the work remains in operation, so Shreya is the owner of the copyright. 4
IV COPYRIGHT INFRINGEMENT
3
4
s2 (2) (a) of the Copyright Act
s21 (1) of the Act
The issue that whether the copying of Shreya’s works infringed her copyright may be answered
after having familiarized ourselves with requirements for a reproduction to amount to an
infringement. Any person except for the copyright holder who reproduces literary work without a
license from the copyright owner or authority is liable for the infringement of the copyright, subject
to s12 exceptions.5 As a result, a test in the case of Galago Publishers v Erasmus 1989 (1) SA 276
(A) has been developed to assess whether the reproduction of work amounts to an infringement.
The court stated that there should be sufficient objective similarity between the original work and
the alleged infringing work and it should be brought that the original work was the source from
which the infringing copy was derived.6 In short, for reproduction to infringe on a person’s
copyright, they need to have copied the substantial part of original work. In Moneyweb, the court
explains that the substantial part refers more to the quality of the work rather than the quantity and
the quality lies in the features that made the work original and if those are found to have been
reproduced then an infringement arises. In analysis of the facts, Ian Kebble copied the obituary as
it is word for word and the photograph, the he published the works on his website. The two steps
indicate that there must be sufficient objective similarity between the original work and the
copyright infringing work. Since Mr Kebble reproduced everything without an alteration, an
objective similarity exists between the Shreya’s works and the works on his website. Moreover,
with the copied works being objectively similar to Shreya’s, bringing out that a substantial part
was reproduced, it can be concluded that the source of the reproduced material was Shreya’s work,
more so, considering the time difference in which the works were posted as Shreya’s work was
the first to be published followed by Mr Kebble’s after having copied.
With that being said, regarding to copying it can be concluded that Mr Kebble was in direct
infringement of Shreya’s copyright in the obituary published on www.eternal-journey.co.za
contravening s23.7 As for the photograph it is not a copyright infringement because its duration
had expired. The duration of the copyright in photograph is 50 years from the end of the year in
5
s23; s6; s12 of the Act
Galago Publishers v Erasmus
7
(1) Copyright shall be infringed by any person, not being the owner of the copyright, who, without the licence of
such owner, does or causes any other person to do, in the Republic, any act which the owner of the copyright may
authorize.
6
which the work was made.8 As per the facts the photograph was made more than 50 years ago
therefore it is now in the public domain.
Summaries are derivative works and are copyright provided they are original and this echoes the
court’s stance in Klep Valves that original works can be derived from existing works and what is
essential is indicating the exertion of skill and labor in expressing the idea. Hence, Ian has the onus
to prove that his summaries are original work. Copyright law protects the expression of an idea,
not the idea implying that the copyright in the obituary is in the words used by Shreya. Thus should
Ian succeed to prove that in his summaries, there isn’t any substantial part extracted from Shreya’s
obituary and further prove that he applied skill and labor in creating the works, the summaries on
www.always-with-us.co.za will not infringe Shreya’s copyright.
V REMEDIES
According s24 (1), copyright infringements shall be actionable by way of suit of the owner and in
any action seek relief by way of damages, interdict, accounts etc. This means that the copyright
holder can institute an action in a court, and claim some relief based on the case presented. In light
of Shreya’s case, she may proceed to lodge an action and claim damages from Ian because he had
been financially benefiting indirectly from the infringement by selling candles on the website he
posted the obituary. Moreover she may seek an interdict that would stop Ian from using her works,
by having the works removed from the website.
VI CONCLUSION
In conclusion, Ian infringed Shreya’s copyright in the obituary by reproducing it. As a result she
may lodge an action seeking a relief of damages and an interdict to have her work removed from
www.eternal-journey.co.za. Regarding the summaries, Ian has to prove that they are original
otherwise they will constitute an infringement and the copyright in the photograph expired so it is
in the public domain now.
8
s2 (2) of the Act
QUESTION 2
The theories of justifying intellectual property law imprints an understanding that copyright law
demands the requirement of originality in works to surface as a result of labor, skill, effort and
must mirror the author’s personality and as a result when the law protects the works not only are
they protect the material but also the author’s character in works. Hence, this essay will deliberate
on the insight derived from the natural right theory and personhood theory by copyright law in
addressing the requirement of originality bringing out the theories’ weakness and strengths.
Concerning the natural right theory, the acquisition of property by labor is legitimate only if other
people do not suffer net harm.9 One of the main components an author need to display in proving
the originality of their work is labor. They must also show that other people’s rights were not
infringed.10 Thus, copyright law derived the understanding that for works to be original one need
to have exerted effort. Moreover, copyright law borrowed the insight that for works to be original
they must not infringe on someone’s rights. The words “if other people do not suffer harm” in
copyright law context implies that works are original if they are not copied from existing material
because that would then infringe someone’s copyright.
The strength of the natural right theory lies in justifying the causal connection between labor and
legitimate works. As a result in developing the copyright law, the requirement of originality in
works must not be contemplated far from labor. The weakness of theory is in its failure to
determine the duration the ownership right to property would last. Resultantly, it seem to imply
that the ownership is eternal which in turn would hinder development in society as it would exclude
others from using the works.11
The theory of personhood exhumes that in creating something as a result of labor, personality is
also incorporated in the creation. In simpler terms creations are manifestations of a person’s
personality. In this regard, copyright law derived the understanding that originality requires
independent contribution on a subjective basis meaning that the exercise of judgement and skill
plays a huge role in legitimatizing works. To add 3 guidelines were developed by Hughes regarding
William Fisher ‘Theories of intellectual property’ (2000) at 3
Ibid
11
Legal Desire ‘Theories of Intellectual Property law rights’ available at https://legaldesire.com/theories-ofintellectual-property-rights/ accessed on 20 March 2022
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10
the shape of an intellectual property system. In short he insisted that there should be the willingness
to grant legal protection to the products of intellectual property activities, because a person’s
person is a receptacle for personality and it deserves legal protection regardless of the fact that it
doesn’t result from labor, more so authors must be allowed to benefit morally and economically
from their creation and shouldn’t cede their right to prevent others from exploiting their work.12
However, its weakness is found in its limited scope of protection as it focuses on protecting the
material aspect of the creation, making the work independent from the author leaving the creation
dependent on the public domain for relevance.13
12
Fisher op cite note 9 at 4
Vallabhi Rastogi ‘Theories of Intellectual Property Law Rights’ available at
https://enhelion.com/blogs/2021/02/27/theories-of-intellectual-property-rights/#_ftn7 accessed on 22 March 2022
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