Study Unit 2.4 - Copyright infringement, remedies and defences

Question 1

Discuss the establishment of infringement.

Answer 1

According to the Erasmus case, infringement by reproduction equals the objective similarity between the two works plus the causal connection between the two works, both aspects must be established.

Question 2

Discuss infringement.

Answer 2

In its simplest form therefore, once we can establish that an activity is within the scope of the exclusive rights and that the person undertaking such activity is not the copyright owner or
has not been authorised by the copyright owner, we can say that infringement has taken place.

Question 3

Discuss infringement under section 23(2).

Answer 3

• Bringing an item into the country for anything other than personal use without permission is an infringement.
• Selling, renting, or offering to sell or rent an item in the country without permission is an infringement.
• Distributing an item in the country in a way that harms the copyright owner’s rights is an infringement.
• Buying or acquiring a computer program in the country if you know or should know that the program was illegally made or would be illegal if made here is an infringement.

Question 4

Discuss infringement under section 23(3).

Answer 4

• If someone lets a public venue be used for a performance of a literary or musical work that infringes on copyright, they are also infringing the copyright.
• But, if they didn’t know and had no reason to suspect that the performance was illegal, they are not held responsible.

Question 5

Discuss criminal infringement.

Answer 5

• Having a plate that you know will be used to make copies that infringe on copyright is an infringement.
• Allowing a literary or musical work to be performed in public, knowing it infringes on copyright, is an infringement.
• Rebroadcasting or transmitting a broadcast knowing it infringes on copyright is an infringement.
• Distributing signals intended for a different purpose, knowing they are protected by copyright, is an infringement.

Question 6

Distinguish between plaigarism and infringement.

Answer 6

The key thing to note between plagiarism and copyright infringement is that the structure of learning, education and copyright allows students and indeed any member of the public to use copyright protected works and engage with them including citing and referring to them.

Question 7

Discuss moral rights infringement.

Answer 7

• Unlike copyright infringement, so-called moral rights infringement is actually by virtue of section 20, a right to claim or a right to object.
• If an author claims or objects and the alleged or potential ‘infringer’ refuses to adhere, it is then left for the courts (if the author approaches the court) to uphold such claim.

Question 8

Discuss the remedies for copyright infringement.

Answer 8

• Remedies are damages or reasonably royalty, interdict, delivery of infringing copies or plates used for infringement.
• The relief of damages not available if the defendant can prove lack of knowledge and no reasonable grounds for suspecting copyright subsistence.

Question 9

What are the defences to copyright infringement ?

Answer 9

A defendant in an action for copyright infringement may escape liability if the defendant can establish
that the work alleged to have been infringed is not
original or that the alleged infringing work pertains to unoriginal aspects of the plaintiff’s work.

Question 10

Discuss fair dealing.

Answer 10

• According to section 12(1), using a work for research, private study, personal use, criticism, review, or reporting current events does not infringe copyright.
• This applies to literary, musical, and artistic works, as well as broadcasts and published editions.
• However, this does not apply to cinematograph films, sound recordings, or computer programs.

Question 11

Discuss the quotation exception.

Answer 11

Copyright in a literary or musical work is not infringed by quoting from it, as long as:

• The quotation follows fair practice.
• The length of the quotation is appropriate for its purpose.
• The source and, if available, the author’s name are mentioned.

Question 12

Discuss the illustration exception.

Answer 12

Using a literary or musical work for illustration does not infringe copyright if:

• The use is limited to what is necessary for the purpose.
• The use follows fair practice.
• The source and, if available, the author’s name are mentioned.