Summary Intellectual Property Law 441 - Cases and theory
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Course
Intellectual Property Law 441 (441)
Institution
Stellenbosch University (SUN)
I have summarised all prescribed cases, and the notes also contain theory explanations. The document uses headings so that it is easy to navigate per topic. I obtained the highest mark for this module in my class.
Introduction
no written test (ignore test date on mysun) – one oral exam and one written exam each
counting 50%
IP law is an umbrella term encompassing: (bold: in SA)
o trademark
o copy right
o designs
o patents
o plant breeder’s rights
o common law
unlawful competition: passing off etc
o data base rights (but we don’t have these in SA)
o performance protection rights – allied to copy right, where people have rights
to their performances
o utility models in some jurisdictions: like a patent, but less strict.
what does IP give you?
o Gives the owner exclusive rights to intangible property so that they can exploit
those rights to their benefit. IP can be transferred – can give other people
rights to it (can license other people to use your IP).
Sources of law relevant for this module:
o Copyright Act
o Trade Marks Act
o other sources:
Counterfeit Goods Act
Merchandise Marks Act
Consumer Protection Act
Companies Act (provisions relating to the fact that you cannot name a
company in a way that infringes a trade mark).
o international conventions:
Paris Convention
Our IP legislation is derived from English legislation
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Copyright
Legislation: the Copyright Act 98 of 1978
Requirements for copyright to subsist in a work
Who owns the copyright?
When is there copyright infringement?
What are the ‘permitted uses’ of a work that act as a defence to a claim for copyright
infringement, or means that there is no infringement.
Eligible works
Waylite Diaries CC v FNB 1995 (1) SA 645 (A)
Accesso v Allforms [1998] 4 All SA 655 (T)
Northern Office Micro Computers v Rosenstein 1981 (4) SA 123 (C)
Marick Wholesalers (Pty) Ltd v Hallmark Hemdon (Pty) Ltd 1999 JOC 707 (T) Klep Valves v
Hallmark 1987 (2) SA 1 (A)
There are 9 types of works eligible for protection in terms of the Copyright Act found
in s2(1): Copyright is found within the four corners of the Act (Northern Office Micro
Computers).
It is important to categorise your work:
o if you cannot bring it within one of the categories you do not have a copyright
work (Northern Office Micro)
o secondly, the duration of protection varies possibly on the type of work
o furthermore, the scope of protection varies on the kind of work, because the
Act defines the rights that a copyright owner has in relation to a particular type
of work (the exclusive acts/exclusive rights/restrictive acts that exist in
relation to a particular type of work).
o The author of the work also depends on the type of work (Haupt)
Types of eligible works:
o Literary works:
Computer programmes in our law are not protected as a literary work
(unlike many other jurisdictions) – computer programmes are protected
in our law as a distinct category.
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Northern Office Micro Computers: highlights the importance of the
part of the definition of ‘literary work’ that states “irrespective of
literary quality” – can include an index of railway stations in a railway
guide or a list of stock exchange quotations.
The definition of ‘literary works’ is followed by a non-exhaustive list.
Components of literary works?
When a work is infringed, the key issue is whether any
substantial part of the work has been infringed (the work does
not have to be infringed in its entirety) (Peter Ross v Ramesar;
Juta v De Koker)
o Musical works:
Excludes lyrics, which would be protected as literary works. Refers to
melodies.
A song is usually two types of work: a musical work and a literary
work (the musical composition and literary work may have different
authors).
A musical composition must be distinguished from a recording: one
instantiation of a song includes a literary work, musical work, and a
sound recording which are separately protected.
o Artistic works:
“artistic work” means, irrespective of the artistic quality thereof—
(a) paintings, sculptures, drawings, engravings and
photographs;
(b) works of architecture, being either buildings or models of
buildings; or
(c) works of craftmanship not falling within either
paragraph (a) or (b);
(these terms themselves are defined)
Klep Valves: the drawing of the valves was the artistic work and not
the 3rd prototype. If a person has a drawing of a valve and makes a
product from it and someone copies the product, that would still be a
copyright infringement but of the drawing.
What constitutes a drawing?
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Distinction between literary works and artistic works
In Klep Valves, the case was decided before the definition of
artistic work was amended to change “works of artistic
craftsmanship” v works of craftsmanship
Includes fonts
o Sound recording:
The fixation of sounds or data representing sounds on some or other
medium
o Cinematograph films:
A videogame in SA has been categorised as a cinematograph film –
videogames (like pop songs) are composite works: there is computer
code (a computer programme), visual images (which may be generated
by a database of images which the programme calls in at the relevant
time – possibly protected as artistic works), musical works (and a
literary work if the song has lyrics).
o Published edition:
Protects the typographical layout of the book (not the contents of the
book). For instance, a work by Shakespeare (Shakespeare is long dead
and the substance of his work is no longer protectable), but new
editions of his work may be protected in respect of the published
edition (but not the content).
o Computer programmes:
In 1992 the Act was amended so that computer programs as protected
as a distinct category of works (no longer protected under literary
works).
Distinction between software and computer program: software is a
wider term and may include works under other categories
o Broadcast
Can a work fall into two categories?
o Yes: there is no clean separation between an artistic and a literary work.
But: if the “work” is too commonplace, it may be that it does not qualify as a “work”
at all (regardless of category) but a drawing of a fairly commonplace item may be
eligible for copyright protection depending on:
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o Is there sufficient substance to call it a work or is it too trival?
But: commonplace elements in a particular arrangement could warrant
copyright protection
o Policy considerations: what are the implications of copyright being granted in
respect of the work? (Waylite: the implications of regarding the pages as an
artistic or literary work would be that it’s very difficult to produce a diary that
does not infringe that layout).
o Whether something is a work is an objective assessment.
Waylite Diaries CC v FNB 1995 (A):
For copy right to vest, the work must be original, reduced to material form, and a ‘work
eligible for copy right’ in terms of s2 of the Act.
The field diaries were too commonplace to be original and did not qualify for
protection.
Facts:
o Waylite was commissioned by FNB in1987 to provide it with field diaries in
1988. Similar diaries were commissioned by FNB from Waylite for 1989,
1990, and 1991.
o FNB invited tenders to supply field diaries for 1992 and, although Waylite
had submitted a tender, FNB awarded the tender to another printing firm.
o The format of these diaries was, to all intents and purposes, identical to those
produced by the appellant. The appellant thereupon applied in a Local
Division for an order interdicting the respondent from infringing its copyright
in the appointment pages of the diaries. The application was dismissed on the
ground that the work in designing, drawing and composing the pages in which
copyright was claimed was not 'original' within the meaning of that word in s
2(1) of the Act.
o Similarities between the diaries:
The appointment pages in which copyright was claimed consisted of
pairs of facing pages, each pair covering a particular week, beginning
on a Monday. On the first line of the lefthand page appeared the month
in English and Afrikaans as well as the number of the week. The days
of the week were then listed in English and Afrikaans and dated on the
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same page, four horizontal lines of writing space being allocated for
weekdays and two such lines each for Saturdays and Sundays. The
righthand page contained a number of lines for the making of notes and
at the foot thereof was a calendar consisting of the current and the two
succeeding months. The colours and typeface used followed the FNB’s
standard corporate identity specifications.
Waylite argued that the sketch of the appointment pages prepared by it
was an 'artistic work' as defined by s 1(1) of the Act because it was
either a 'drawing' or a 'chart', that s 1(1) of the Act defined 'artistic
work' as meaning, 'irrespective of the artistic quality thereof . . .
drawings . . .' and the word 'drawing' was defined as including 'any . . .
chart . . .'. It was also contended that the appointment pages were
'literary works'.
o Waylite argued that the appointment pages in their diaries were original and
were ‘works eligible for copyright’ within the meaning of s2 of the Copyright
Act. The list of eligible works in the Act includes (a) literary works and, (c)
artistic works.
o Definition of a literary work: “literary work” includes, irrespective of literary
quality and in whatever mode or form expressed—
(a) novels, stories and poetical works;
(b) dramatic works, stage directions, cinematograph film scenarios and
broadcasting scripts;
(c) textbooks, treatises, histories, biographies, essays and articles;
(d) encyclopaedias and dictionaries;
(e) letters, reports and memoranda;
( f ) lectures, speeches and sermons; and
(g) tables and compilations, including tables and compilations of data
stored or embodied in a computer or a medium used in conjunction
with a computer,
o Definition of artistic works: “artistic work” means, irrespective of the artistic
quality thereof—
(a) paintings, sculptures, drawings, engravings and photographs;
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(b) works of architecture, being either buildings or models of
buildings; or
(c) works of craftmanship not falling within either paragraph (a) or (b);
o Waylite argued that the appointment pages in the diary were an artistic work
as defined in s1(1) because the it is a ‘chart’ the definition of artistic work
includes drawings, and drawing is defined to include any diagram or chart.
Alternatively, that they were literary works because they consisted of a
‘compilation’ (the selection of the days of the week represented on the one
page and the decision to place an abbreviated calendar of three months at the
foot of the next page).
The court:
o Argument that the appointment pages were a ‘drawing’: rejected
Whether an alleged work is proper subject matter for copyright
protection as envisaged in s 2(1) of the Copyright Act involves an
objective test, both in respect of originality and 'work'. First it must
be tested whether the work falls within one of the categories in s2(1)
and secondly whether the work is original, but the two inquiries can
become entwined.1 In assessing whether a work is entitled to
protection, it is permissible to have regard to the consequences of the
recognition of copyright in a work of doubtful substance.
Def of drawing in dictionary: (t)hat which is drawn; a
delineation by pen, pencil, or crayon; a representation in black
and white, or in monochrome; a sketch'.
Applying this definition, Waylite submitted that the lines and
the layout of the appointment pages form a drawing which is,
on the facts of this case, an 'artistic work'.
Under 'layout' counsel meant the positioning of the words and
numbers on the pages, the spacing of the lines, their colours
and the font selected. It was also argued that a single line or the
lines on an exercise book's pages could similarly be artistic
works.
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'To some extent the concept of what constitutes a "work" within the Act and the concept of originality are
intertwined. It is difficult to discuss what amounts to a "work" without discussing originality, since without a
sufficient degree of "originality" a "work" will not come into existence.'
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The court rejected this argument: to say that a particular mode
of ruling a book constituted an object for a copyright is absurd'.
– but this does not mean that a ‘drawing’ must be similar to a
painting or a sketch, a simple drawing may be the subject of
copy right as long as it can fairly be called a drawing.
As to the contention that the appointment pages constituted a 'chart' (ie
a 'sheet bearing information of any kind arranged in a tabular form' -
The Oxford English Dictionary definition), that the effect of the
argument would be to blur the distinction between artistic and literary
works in the light of the definition in s 1(1) of the literary works,
which encompasses 'tables and compilations': it could not be accepted
that, fairly speaking, the works in issue were charts.
o Argument that the appointment pages were not covered by the term 'literary
work' rejected
As to a contention that the appointment pages were a literary work
because they consisted of a 'compilation' as intended in the definition
of 'literary work' in s 1(1) of the Act, that the effect of the argument
would be that, having regard to the fact that copying could be indirect
and that an adaptation of a work was 'an infringing act', anyone who
saw the field diary and who wished to produce a diary having the basic
layout of two facing pages, the one for daily entries and the other for
notes, would infringe copyright: such a result would be so farfetched
that the Legislature could not have contemplated it.
Applying certain dicta in G A Cramp & Sons Ltd v Frank Smythson
Ltd [1944]), that 'there seems to be nothing that can properly be
described as an "original literary work" in grouping together' the
information in the appointment pages and that not every compilation
could claim to be an original literary work 'even in the pedestrian sense
attributed to these words by the law'. For a compilation to be the
subject of copyright, it had not to be commonplace: the so-called
compilation in the present case was clearly commonplace.
Held:
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o Waylite had failed to establish that the appointment pages were either artistic
or literary works for the purposes of the Copyright Act and therefore the
appeal was dismissed.
Accesso v Allforms [1998] 4 All SA 655 (T)
Facts:
o Vernon Herseleman is the sole member of Accesso, which carries on the
business of supplier and distributor of stationery in Pretoria.
o His company, Accesso CC, owns the copyright in certain medical account
forms which is being allegedly being infringed by Allforms by reproducing
and selling them without applicant's permission. Accesso argues in the
alternative that even if Allforms do not infringe Accesso’s copyright, it
unlawfully competes with Accesso by selling and distributing these forms and
should be restrained on this ground as well.
o Vernon states that the respondents carry on the business of printing brokers of
stationery including business forms and also medical account forms. Although
the respondents do not conduct the actual printing of the forms, they
subcontract it and give instructions to do so.
o The applicant is not sure what the relationship between the first and second
respondents is and invites them to clarify it, although both may have an
interest in the business of selling and distributing these forms.
o How Accesso’s rights in the medical forms arose:
Vernon’s brother Roy has for years been engaged in developing,
installing, and giving training on computerised patient systems for the
medical and dental profession.
In 1989 Roy and his brother in law (Mieny) developed a computerised
accounting system for doctors and dentists which differs from previous
systems, inter alia, because their system caters for the requirements of
medical aid schemes.
Mieny developed the software in collaboration with Roy who designed
the form which represented the statement of account containing the
data fed into the computer by the practitioner. The software plus the
form together constituted a ‘package’ known as the ‘Mass package’
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(after Mass CC, which Roy and Mieny were members). Vernon was
asked to market these forms, which he did through Accesso.
o Accesso argues:
that Roy produced an accurate sketch of the form after a great deal of
creative effort had been expended on it.
It was an original work and differed materially from any other form or
statement on the market at that time.
o After drawing the sketch, Roy gave it to Mieny who wrote a software
programme to fit the form. Roy approached Allforms and instructed them to
produce the form in print. He handed the final sketch which he had drawn to
an employee of Allforms, a Ms Barr ('Barr'). This sketch has since
unfortunately disappeared and cannot be found. Barr has, however, attached
virtually identical reproductions of Roy's original sketch to her affidavit in
reply as the proofs JB15 which were later converted into VH2.
o VH2 differs from the original sketch, according to Vernon and Roy, only in
the colour shading which was imposed on the white proof on Roy's
instructions.
o Accesso through Vernon ordered 100 000 of the VH2 forms to be printed. It
turned out the forms were slightly too wide for the printers commonly used in
medical practices and the batch had to be discarded. Accesso changed the
forms by leaving out one of the original columns (‘benefit scale’) and had a
new batch reprinted by another contractor (as VH3).
o Further minor changes were affected – VH4 came into being, which was still
practically identical to the original sketch.
o Mass CC owns the copyright in this form VH2 with its reproductions and
adaptations VH3 and VH4.
o In 1996 Roy and Mass CC assigned their copy right to Accesso by way of a
written deed of assignment signed by all parties to it. On all three forms (that
is VH2, VH3 and VH4) the following legend appears at the bottom of each
form namely 'copyright all rights (including distribution rights and design
layout of this form) held by Mass CC'.
o Accesso alleges:
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