The Copyright Act does not provide for a right of "communication to the public" in respect of the fixations of television broadcasts. The Act grants the right of reproduction as referred to above, rebroadcasting and transmission in a diffusion service in respect of broadcasts.

The 20 year term of protection provided for in Section 7 of the Performers' Protection Act does not comply with TRIPS Article 14.5. However a Bill amending the Act in this respect is currently pending before the legislature. The amended Section 7 will read as follows: "The prohibition against the use of a performance as provided for in Section 5 shall commence upon the day when the performance first took place or, if incorporated in a phonogram, when it was first fixed on such phonogram, and shall continue for a period of 50 years calculated from the end of the calendar year in which the performance took place or was incorporated in the phonogram, as the case may be."

See reply to question 1.

Yes, save for the reference in Article 10bis(1) Berne to "the communication to the public by wire". Section 12(7) allows for the reproduction in the press and the broadcasting of the works referred to.

Yes. Sections 12(1) and 15(4) of the Copyright Act provide that copyright in literary and artistic works shall not be infringed by any fair dealing with such works for the purposes of reporting current events in a newspaper, magazine or similar periodical, or by means of broadcasting or in cinematograph film. In the case of reporting current events in a newspaper, magazine or similar periodical, the Act provides that the source shall be mentioned, as well as the name of the author if it appears on the work concerned.

The Copyright Act makes no provision for the "droit de suite" referred to in Article 14ter of the Berne Convention.

The Czech Copyright Act contains several basic principles which should be clarified prior to the answer. According to Article 14, paragraph 1 a work may be used only upon the author's permission, should it not be permitted directly by the law. Paragraph 2 further stipulates that the author's permission following from the law may not be excluded or reduced by agreement between the parties. Paragraph 3 sets up that a work may be used without the author's permission only in cases specified in Article 15. These principles apply partially also to the rights of performers. The Czech Copyright Act has no limitations and no exceptions to the exclusive author's right regarding non-voluntary licences for the sound recording of musical works corresponding to Article 13, paragraph 1 of the Berne Convention and has no non-voluntary licences for primary broadcasting and satellite communication corresponding to Article 11bis, paragraph 2 of the Berne Convention. Exceptions and limitations according to Articles 9(2), 10 and 10bis of the Berne Convention are implemented in Article 15 of the Czech Copyright Act and do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the authors. The permitted use of the work for private copying according to Article 15, paragraph 2a does not apply to computer programs. On the other hand, regarding private copying the equitable remuneration is granted from unrecorded carriers. Exclusive right of performers is limited by cases of free usage of performances and legal licences. The user does not need any approval and is not obliged to pay a fee for using the performance for user's personal need (in such a case the performers are entitled to get remuneration from unrecorded carriers) and for using the performance from a recording or phonograms exclusively for scientific or educational purposes and within the framework of reporting about actual event by photograph, film, radio or television (so-called unpaid reporting licence). The user does not need approval, however, he is obliged to pay a fee in respect of making the recording of performer's performance realized for broadcasting organization provided that the recording is taken by this organization by its own means for its own broadcasting, and further in case of broadcasting the performance by radio or television provided that it is done from recording or phonogram which was made with performer's approval. Sound recording can be used only with approval of a producer who is entitled to get remuneration. Producer's approval is necessary for broadcasting of sound recordings and phonograms by radio or television, for making the reproductions of sound recordings or phonograms for other than own personal need, for public performance of sound recordings or phonograms, for lending and rental of sound recordings or phonograms. Producer of phonograms is entitled to get remuneration also from unrecorded carriers and rental. Radio or TV programme may be rebroadcasted, recorded for other than own personal need, and such recording may be further reproduced or otherwise communicated to the public only with the approval of the organization having realized the programme. Broadcasting organizations have the right for compensation except for that case when they transmit broadcasting of other broadcasting organizations. Unpaid reporting licences and licences for scientific and educational purposes are used both for producers of phonograms and broadcasting organizations.

The notion "normal exploitation of the work" is not directly defined in the Copyright Act. The reason is that the exceptions and limitations, which are always considered as an interference with the exclusive right of authors, are confined to certain special cases indicated in Article 15. The exceptions and limitations cannot be interpreted to a larger extent. The Copyright Act contains provisions regarding the exercise of author's right, for which publishers of a collection of the works, cartographic works and periodicals as well as producers of a film or a work expressed in similar manner are authorized. According to Article 17, also the employer has the right to exercise the author's rights regarding the work created by the employee for fulfilment of his duties resulting from his employment. By this means, the Copyright Act grants the justified interests of rightholders and users. In connection with the contracts on dissemination of work we use normal exploitation of the work as regards the form, purpose and extent of dissemination of a work. Especially author's permission to use the work in a manner which is agreed in a contract, may not be extended to the use of work which parties to the contract could not have in mind or to that one which was unknown at the time of conclusion of a such contract.

Yes. The Decree of the Ministry of Culture No. 115/1991 Coll. contains the provisions regarding right of authors, performers and producers of phonograms on equitable remuneration in respect of the rental of phonograms. This Decree grants one common remuneration of 10% of the price of rental of phonograms to authors, performers and producers of phonograms. This remuneration is managed by the Collecting Societies. The position of the producers of phonograms was further strengthened by the last amendment of the Copyright Act in 1996. According to Article 45, the permission of the phonogram producer is required for lending and rental of phonograms. Producers of phonograms at this time prefer sale of phonograms to rental. Since 1 January 1996, the new Act No. 237/1995 Coll. on Collective Administration of author's rights is in force. The intention of the Czech Government is, therefore, to continue in this practise.

The whole question of Section 4 of the TRIPS Agreement is dealt with in the Counterfeit Goods Bill which is pending before the legislature and which is expected to pass into law before the end of this year. The time periods required by Article 55 TRIPS are prescribed in the Counterfeit Goods Bill and Section 28 of the Copyright Act must in future be read together with the relevant provisions of the Counterfeit Goods Act, once it has become law. The Counterfeit Goods Bill deals inter alia with the restriction of the importation of articles which infringe copyright or registered trademarks. Accordingly, the period specified in the notice to the Commissioner for Customs and Excise would be that of the TRIPS Agreement.

In the Czech Republic the amendment of the Copyright Act has been in force since 22 April 1996. As the Czech representative said at the beginning of this review, the notification will be made as soon as an official translation of this Act is finished. The new Article 53a is as follows: (1) Authors, performing artists and phonogram producers, or persons authorized to exercise their rights pursuant to this Act, may require from customs authorities information about the contents and volume of import of goods, which are of the nature of reproductions of works or their sound, visual or audiovisual recordings, or goods, which is to serve for production of such recordings as their carrier (blank carriers), and to examine customs documents for the purpose of establishment, if import of such goods for dissemination in the market is in compliance with this Act. (2) The customs authority shall at a written request of persons authorized pursuant to paragraph 1 suspend the procedure of release of goods for free circulation for ten working days, if there is a justified suspicion that with import of such goods the rights pursuant to this Act would be violated. In justified cases the period of suspension of the procedure may be extended by further ten working days. (3) Should the importer of goods mentioned under paragraph 1 not prove within the term pursuant to paragraph 2 that his import is in compliance with provisions of this Act, the customs authority shall not release the goods in free circulation. (4) Provisions of paragraph 1 through 3 shall apply analogously also for export of goods mentioned in paragraph 1. The Czech legislation contains also civil and criminal remedies. According to the special protection of copyrights and rights of performing artists, as stipulated in the Copyright Act No. 35/1965 in conjunction with Section 39, paragraph 1 of this Act, the author whose right was infringed may demand, on the basis of Civil Law, that the infringement of his/her right is prohibited, the consequences of such infringement or abuse are removed (corrected) and the author receives the appropriate compensation. If, as a result of such an infringement, a substantial injury in kind has been caused, the author shall be entitled to receive a monetary compensation provided another form of compensation has turned out to be inadequate. The amount of such monetary compensation shall be determined by the court. As for civil and judicial procedures, the court may ban the distribution of tangible publications which were wrongfully used and order the illegal user to destroy the respective publications at his/her expense. Criminal procedure enables in the case of infringements of copyright to involve imprisonment up to two years, monetary fine, or seizure of the thing. If the culprit has, through the infringement, received a substantial benefit or the scope of his/her act is substantial, the punishment is from 6 months to 5 years imprisonment, monetary fine or forfeiture of the thing.

See reply to EC question 1.

The position regarding sound recordings is not consistent with TRIPS Article 3 and will be rectified. Such rectification can be achieved by way of an amendment to the existing regulations and can be accomplished before the end of the year.

The extension of the scope of Section 4 of the Performers' Protection Act to include all WTO Members must be brought about by an amendment to the Act itself. It is envisaged that such an amendment will take place in 1997 and will have retroactive effect.

The term of protection in the case of a sound recording or phonogram is 50 years from the date on which the sound recording is first published (Section 3(2)(c) of the Copyright Act). This term applies irrespective of the country of origin of the sound recording. By the same token the term of protection granted to performers in respect of their performances under the Performers' Protection Act is 20 years calculated from the end of the calender year in which the performance took place or, if the performance was incorporated in a sound recording, the year in which it was so incorporated (Section 7 of the Performers' Protection Act). Here too the term is the same for foreign and South African performances. Accordingly, South Africa does not apply the "rule of the shorter term" to phonograms and performances from other WTO Members. (See in this regard also our answer to United States question 9 and European Communities question 7).

In terms of Section 9(a) of the Copyright Act the exclusive right of making, directly or indirectly, a record embodying the sound recording is conferred in respect of a sound recording. The term "record" is defined in Section 1 of the Act to mean "any disc, tape, perforated roll or other device in or on which sounds are embodied so as to be capable of being automatically reproduced therefrom or performed". A Bill to amend the Copyright Act is currently pending and in terms of this Bill the definition of "record" will be amended to read as follows: "Any disc, tape, perforated roll or other device in or on which sounds, or data or signals representing sounds, are embodied or represented so as to be capable of being automatically reproduced or performed therefrom". It is submitted that these provisions are in compliance with Article 14.2 of TRIPS.

There is some doubt whether in terms of the existing definition of "record" reproductions made by digital transmission in the context of interactive services are covered. However, once the definition of "record" has been amended as envisaged in the Intellectual Property Law Amendment Bill the answer is in the affirmative. A reproduction made by digital transmission as specified will be a disc or other device on which data or signals representing sounds are embodied etc.

Section 43(a) of the Copyright Act makes that Act applicable to all works (including foreign works) whether they were made prior to 1979 or thereafter. This general principle is subject to certain conditions of which only one is relevant to the present enquiry, namely that set forth in paragraph (a)(ii). Paragraph (a)(ii) qualifies the retroactivity of the Act by stating that the provisions of the Act cannot create copyright in any type of work in which copyright could not subsist prior to 11 September 1965 (the date on which the Copyright Act 1965, the predecessor of the current Act, came into operation). Prior to 11 September 1965 published editions were not eligible for copyright. The provision does nor preclude a particular work from enjoying copyright retroactively even though it might not have historically enjoyed such protection prior to September 1965. In essence, once a foreign country has been proclaimed as a country to which South African copyright extends, all works eligible for copyright emanating from that country will enjoy protection no matter when they were made in exactly the same way as South African works. A copy of a recent judgement of the Appellate Division of the South African Supreme Court in Appleton & Another v Harnischfeger Corporation & Another 1995 (2) SA 247 (A) dealing with the retroactivity of the Copyright Act 1978, in regard to United States works is annexed hereto. The retroactivity of South African copyright law is a very complex issue and a more detailed exposition of it can be found in Part 3 of Dean "Handbook of South African Copyright Law" and in that author's doctoral thesis entitled "The Application of the Copyright Act, 1978, to Works made prior to 1979". The court in the Harnischfeger case incidently recognised these as authoritative sources in its interpretation of Section 43(a). Section 14 of the Performers' Protection Act specifically provides that the Act shall not apply to performances which took place before its commencement, i.e. 30 December 1967. Performances prior to that date thus do not enjoy the protection of the statutory performers right. This applies equally to works of South African and foreign origin.

Such works could be "works of a technical nature", "published editions" and "computer programs" (see Dean "Handbook of South African Copyright Law" at 3-44 to 3-51).

The Bill to amend the Performers' Protection Act currently pending before the legislature will amend Section 14 of the Act so as to make sub-section (2) provide that the Act will apply to performances which took place before the commencement of the Act in the same way as it applies to performances which took place after the commencement of the Act. This Bill is expected to pass into law before the end of the year.