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intellectual property (IP)

intellectual property (IP) | 06 Apr 2021
BY Waldo Steyn

Copyright compendium

There’s been a lot of copyright in the news of late. Here are a few of the more interesting stories.

A failure to deal with copyright concerns can have serious economic implications

Copyright in South Africa appears to be in stasis. This is, of course, down to the concerns that have been expressed about proposed changes to the Copyright Act, 1978 and the Performers’ Protection Act, 1967. These proposed changes go way beyond the scope of a short compendium article but there has, of course, been much focus on the “fair use” provisions.

It’s well known that US companies, represented by the International Intellectual Property Alliance (IIPA), are particularly concerned that the proposed amendments will be prejudicial to US companies that rely on copyright protection in South Africa.

There is growing concern that the failure to resolve the issues regarding the copyright legislation may have significant economic implications for South. This relates to the fact that South Africa’s participation in two programs that open and create tariff-free access to the US market – the General System of Preferences (GSP) and the African Growth and Opportunity Act (AGOA) – is under review. A meeting between South African and US officials is in the offing, let’s hope that it delivers results.

Whatever you may think of Stephen King, he’s no copyright thief

In the USA, the horror novelist (as in author of horror books, not a shocking author) Stephen King has successfully defeated a copyright infringement claim. It was a pretty unusual case.

In a book called The Dark Tower, King has a character called Roland Deschin.  A comic book author called Benjamin DuBay alleged that King had copied Deschin from a character called the Rook, a man who appeared in a comic book series of the same name that had been created (seemingly by DuBay’s uncle) in 1976. Amongst the alleged similarities were the fact that both were gunslingerswith a strong affinity with birds.” The court found in favour of King.

There were a number of factors that the court considered relevant. One was the fact that King’s original manuscript for The Dark Tower actually pre-dated the publication of The Rook – DuBay had sought to counter this by claiming that King had subsequently adapted his character so that he became more like the Rook.

The court found that whatever similarities there were between the characters, these were basic similarities related to their profiles as “adventure seeking protagonists.” The court felt that DuBay had wrongly focused on “banal elements rather than the characters’ “distinctive traits.” These distinctive traits included the fact that King’s character is an anti-hero who makes “ethically ambiguous” choices and lives in a dystopian world where he kills in cold blood. The Rook, on the other hand, is “upbeat and motivated by a desire to correct history and make things better.”

This case sounds very much like it was a bit of a non-starter, so let’s follow this up with another…

Load of bull

Is bullfighting capable of copyright protection? This was the issue that the courts had to consider in Spain (where else?).

The first court held that bullfighting is not capable of copyright protection because the rules of this “sport” leave no room for creative freedom, meaning that there is no originality. This issue went up to the Supreme Court, which approached the matter somewhat differently. It held that bullfighting does involve originality in the sense that being a matador requires creative decision-making (as in deciding how to get out of the way of an antagonised creature with huge horns). But bullfighting cannot be a “work” for copyright purposes because it cannot be expressed in a way that makes it identifiable with sufficient precision and objectivity. Moreover, bullfighting cannot be regarded as a choreographic work because each bullfight is unique.

It’s an interesting case but it probably won’t have much application in South Africa or anywhere else for that matter.

Time for some linking

A great deal has already been written about the recent EU decision regarding linking, framing and embedding, the Bild-Kunst case (G Bild-Kunst and Stiftung Preußischer Kulturbesitz (C-392/19)). We’re going to keep this very brief by saying that what the court decided here was that a copyright owner can require a licensee to implement technical measures to protect the work from infringement, more particularly measures that will prevent third parties from integrating thumbnails displaying the copyrighted works via framing (embedding).

In the navy

…you can sail the seven seas. But you still can’t infringe copyright. In a recent US case, the US Navy was successfully sued for infringing copyright in software by exceeding the number of licences that had been purchased. It’s a bit disappointing to read this about the sailors, but at least they weren’t actually copying computer software.

In summary

Stories like these remind us of how broad, diverse and relevant copyright is, not to mention economically significant.

 

Waldo Steyn

IP | Executive

wsteyn@ENSafrica.com

+27 82 382 6404