Unit 2.4 - Copyright infringement, remedies and defences

Question 1

What are the different kinds of infringement ?

Answer 1

• First kind infringement occurs if someone performs an act that the copyright holder has exclusive rights over, without permission.
• Second kind involves importation and distribution for commercial purposes, and may depend on whether the infringer knew or should have known the infringement would occur.
• Criminal infringement involves more severe actions, typically for commercial gain or large-scale distribution of infringing goods, and can lead to criminal charges.

Question 2

Discuss the establishment of infringement.

Answer 2

• In terms of the Brewers Marketing Intelligence case, copying any substantial part of a work would be an infringement.
• In terms of the Quad Africa Energy case, the mere fact that prior work has been used doesn’t constitute an adaptation, and that the creative composition must be similar and not just the idea.
• In terms of the Galago Publishers case, there must be an objective similarity and a casual connection to establish infringement by reproduction.

Question 3

Discuss an infringement under section 23(2) of the Copyright Act.

Answer 3

• Imports an article into the Republic for a purpose other than for his private and domestic use.
• Sells, lets, or by way of trade offers or exposes for sale or hire in the Republic any article.
• Distributes in the Republic any article for the purposes of trade, or for any purpose, to such extent that the owner of the copyright in question is prejudicially affected.
• Acquires an article relating to a computer program in the Republic, if to his knowledge the making of that article constituted an infringement of that copyright.

Copright will be infringed.

Question 4

Discuss an infringement under section 23(3) of the Copyright Act.

Answer 4

The copyright in a literary or musical work shall be infringed by any person who permits a place of public entertainment to be used for a performance in public of the work, where the performance constitutes an infringement of the copyright in the work.

Question 5

Discuss criminal infringement.

Answer 5

• Makes or has in his possession a plate knowing that it is to be used for making infringing copies of the work.
• Causes a literary or musical work to be performed in public knowing that copyright subsists in the work and that performance constitutes an infringement of the copyright.
• Causes a broadcast to be rebroadcast or transmitted in a diffusion service knowing that copyright subsists in the broadcast.

Question 6

What is the difference between plagiarism and infringement ?

Answer 6

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

What is moral rights
infringement ?

Answer 7

Involves the right to claim authorship
and the right to object to any distortion, mutilation or other modification of the work where such action is or would be
prejudicial to the honour or reputation of the author.

Question 8

What are the remedies for copyright infringement ?

Answer 8

• Damages or Reasonable Royalties (not both at same time)
• Interdict or Injunction.
• Delivery of infringing copies or plates used for infringement.

Question 9

When is relief of damage not available ?

Answer 9

The relief of damage is not available if the defendant can prove lack of knowledge and no reasonable grounds for suspecting copyright subsistence.

Section 24(2) of the Copyright Act.

Question 10

What are the defences against copyright infringement ?

Answer 10

• No originality.
• No locus standi.
• No substantial similarity.
• Defendant’s activity is outside the scope of the exclusive rights framework.
• Copyright expiration.

Question 11

What are the exceptions to copyright infringement ?

Answer 11

• Fair Dealing
• Use in judicial proceedings.
• Quotation.
• Illustration.

Question 12

Discuss the fair dealing exception.

Answer 12

• For the purposes of research or private study by, or the personal or private use of, the person using the work.
• For the purposes of criticism or review of that work or of another work.
• For the purpose of reporting current events.

Copyright shall not be infringed.

Question 13

What are the factors that must be considered to determine
fairness ?

Answer 13

• Purpose and character of use.
• Nature of the copyrighted work (creative works are afforded more protection).
• Amount and substantiality of the portion used.
• Effect of the use on the potential market.

Moneyweb case.