The application of the Copyright Act, 1978, to works made prior to 1979
Date
1988-12
Authors
Dean, O. H.
Journal Title
Journal ISSN
Volume Title
Publisher
Stellenbosch : Stellenbosch University
Abstract
Article 1 Section 8 Clause 8 of the Constitution of the
United States of America empowers Congress "to promote the
progress of science and useful arts, by securing for limited
times to authors and inventors the exclusive right to their
respective writings and discoveries". This simple clause
sums up in a few words the philosophy and underlying principles
of modern copyright law. Copyright law, like other
branches of intellectual property law (i.e. the laws of
patents, trade marks and designs), seeks to create a system
whereby the creator of original works or intellectual property
is afforded a qualified monopoly in the use or
exploitation of his work in order, first, to compensate and
reward him for the effort, creativity and talent expended
and utilized in the creation of his work, and secondly, to
act as an incentive for him to use his talents and efforts
to create more and better works or items of intellectual
property. The qualified monopoly is limited in duration and
after the expiry of the term the work falls into the public
domain and can be freely used and reproduced by others. A
balance is struck between the interests of the individual
and the public interest. The rationale behind this
philosophy is the establishment of a profit incentive for
creators of intellectual property. The effectiveness of the
profit motive is dependent upon the degree to which the
creator of the intellectual property is able to maintain and
enforce his qualified monopoly. If the law is not effective
in enabling the creator of intellectual property to maintain
and enforce his monopoly then the efficiency of the operation
of the profit motive will be impaired. Consequently,
the soundness and effectiveness of the law of copyright is a
. significant factor in the promotion of the creation of
intellectual property and ultimately• in enriching our culture
and promoting our knowledge and well-being. Viewed from
a different perspective, the purpose of copyright is to
prevent one man from appropriating to himself what has been
produced by the skill and labour of others1 .
In broad terms, copyright may be described as the exclusive
right in relation to a work embodying intellectual property
(i.e. the product of the intellect) to do or to authorize
others to do certain acts in relation to that work, which
acts represent in the case of each type of work the manners
in which that work can be exploited for personal gain or
profit.
Copyright is an immaterial property right. The subject of
the right is a work of the intellect or spirit and thus an
intangible. Copyright in a work is akin to ownership in a
tangible article. The following analysis of the essential
nature of copyright by Slomowitz AJ in Video Parktown North
(Pty) Limited v Paramount Pictures Corporation is instructive: "It seems to me that when he who harbours an idea, by dint of his imagination, skill or labour, or some or
all of them, brings it into being in tactile, visible or audible form, capable thereby of being communicated to others as a meaningful conception or apprehension of
his mind, a right of property in that idea immediatelycomes into existence. The proprietary interest in that object of knowledge is the ownership of it and is
called 'copyright'. It might just as well be called 'ownership', but we have chosen to call it by another name, reserving 'ownership' as the appellation for the proprietary interest in corporeal things, by way of semantic, but not, as I see it, legal, distinction. In
this sense, copyright has sometimes been called 'intellectual property', as it indeed is. " Copyright subsists in the work of the intellect embodied in a material form which is a tangible article. The tangible or physical form of the work embodies two separate items of
property, i.e. the copyright in the work of the intellect and the ownership of the tangible article. Ownership of the two items of property must be distinguished and can vest in
different persons. Transfer of the ownership of one of the
i terns of property does not necessarily affect transfer of
the ownership of the other item of property.
Description
Thesis (LLD) -- Stellenbosch University, 1988.
Keywords
Sound recordings -- Copyright -- South Africa, Publications -- Copyright -- South Africa, Criminal offences