Unit 2.4 - Copyright infringement, remedies and defences

Question 1

What are the different kinds of infringement ?

Answer 1

• Infringement occurs when someone uses a copyrighted work without the owner’s permission and the activity falls within the scope of the copyright owner’s exclusive rights.
• Infringement includes importing copyrighted goods for purposes like sale, trading, or hire (not just for personal/domestic use).
• Criminal infringement.

Question 2

Discuss section 23.

Answer 2

Copyright is infringed when someone, who is not the owner, does or allows others to do something in the country that only the copyright owner has the right to do, without getting permission from the owner.

Question 3

Discuss the establishement of infringement.

Answer 3

• In terms of the Brewers case copying any substantial part of a work is infringement.
• In terms of the Erasmus case, infringement by reproduction requires an objective similarity and causal connection.

Question 4

Discuss infringement under section 23(2).

Answer 4

• Import an article into the country for reasons other than personal or domestic use.
• Sell, rent, or offer for sale or hire any article in the country.
• Distribute articles within the country for trade or in a way that harms the copyright owner’s interests.
• Acquire a computer program in the country, knowing that making or distributing it was an infringement.

Question 5

Discuss infringement under section 23(3).

Answer 5

• A person who allows a public venue to be used for a performance of a literary or musical work can be liable for copyright infringement if the performance itself infringes the copyright.
• This doesn’t apply if the person allowing the performance had no reason to believe or suspect that the performance would infringe copyright.

Question 6

Discuss criminal infringement.

Answer 6

• Make or possess a plate knowing it’s for creating infringing copies of a work.
• Cause a public performance of a literary or musical work, knowing it infringes copyright.
• Cause a broadcast to be rebroadcast or transmitted, knowing it’s an infringement.
• Distribute program-carrying signals knowing they’re not intended for the distributor and that it infringes copyright.

Question 7

Distinguish between pliagarism and infringement.

Answer 7

The key difference between plagiarism and copyright infringement is that copyright law allows people, including students, to use and refer to protected works, as long as they cite or acknowledge the source.

Question 8

What are the remedies for copyright infringement ?

Answer 8

• Damages or Reasonable Royalty (but not both at the same time)
• Interdict (court order to stop the infringement).
• Delivery of infringing copies or plates (e.g., handing over copies made illegally).

Question 9

What are the defences for copyright infringement ?

Answer 9

• No originality.
• No proper copyright ownership (locus standi).
• No substantial similarity.
• Outside the scope of exclusive rights.
  Copyright has expired.
• Fair dealing or specific exceptions (e.g., educational use, research).

Question 10

Discuss the factors for fair dealing.

Answer 10

When determining if use is “fair,” consider:

• Purpose: Commercial vs. educational, transformative vs. duplicative.
• Nature of the work: Factual works vs. creative works.
• Amount used: How much of the work is used.
• Market effect.

MoneyWebb case.

Question 11

Discuss quotations.

Answer 11

Quoting from copyrighted works is allowed if:

• It’s compatible with fair practice.
• The extent of the quote is justified by the purpose.
• The source and author (if available) are acknowledged.

Question 12

Discuss illustrations.

Answer 12

Using works for illustration (e.g., in teaching materials) is allowed if:

• It’s compatible with fair practice.
• The extent of use is justified by the purpose.
• The source and author are acknowledged.