Protection afforded by copyright

The subsistence of copyright in a work in terms of the Copyright Act does not confer absolute protection for the work in the sense of prohibiting the making of or use of a similar work by another in all circumstances; it confers generally a right to prohibit copying of the work by another.  Copyright confers on the copyright owner an exclusive right to do or to authorise the doing of certain acts specified in respect of the different categories of works.  These vary according to the type of work.  The most important act which is so prohibited is the making of a reproduction (or copy) of the work.  This applies to all works other than programme-carrying signals, where diffusion of a work is the most important prohibited act.
The acts reserved exclusively to the copyright owner are set out in respect of the different categories of works in sections 6-11, 11A and 11B of the Copyright Act.
The term ‘reproduction’ is defined in section 1(1) as follows:
‘reproduction’ in relation to-

• a literary or musical work or a broadcast, includes a reproduction in the
  form of a record or a cinematograph film;


• an artistic work, includes a version produced by converting the work into
  a three-dimensional form or, if it is in three dimensions, by converting it
  into a two-dimensional form;


• any work, includes a reproduction takes place from a reproduction of that
  work.

Accordingly, reproduction arises even where a copy of the work is copied. Further an unauthorised reproduction of a drawing of a technical nature will be made if the drawing itself is not reproduced but a three-dimensional reproduction of the drawing is reproduced in any form. This is particularly relevant in the context of reverse engineering. For further information on Artistic Works and Reverse Engineering, please click here.

It has been held by the South African Supreme Court of Appeal, that there are two elements involved in proving unauthorised reproduction, namely:

• a sufficient degree of objective similarity between the original work and the alleged infringement; and


• a sufficient causal connection between the plaintiff’s work and the defendant’s work; in other words the plaintiff’s work must be the work from which the allegedly infringing work was derived.