The complexity of the retroactive provisions of the South African Copyright Act brought about by Section 43 is due to several factors. Interpreting Section 43(a)(ii) could require having recourse to copyright legislation dating from 1916 and even earlier and this same legislation has a bearing on the interpretation of Section 43(a)(ii) of the Act in terms of which the continuation of old copyright is regulated. The complexity is amply illustrated by the judgement in Appleton v Harnischfeger (referred to in the answer). In short, in dealing with the copyright in works made prior to 1965 one must have regard to the provisions of repealed copyright laws and to the interaction of laws with the provisions of the Copyright Act of 1978. This point will also be dealt with further in dealing with the follow-up questions to question 5.

See reply to EC question 2.

No matter when computer programs were made they enjoy protection under South African copyright law. Computer programs made prior to 1965 are protected as literary works (i.e. as a species of literary work). Computer programs made subsequent to September 1965 and prior to 1 January 1979 enjoy protection as a species of literary work and as a "computer program" (i.e. the sui generis category of work). A computer program made after 1 January 1979 only enjoys copyright protection a computer program and not as literary work. The aforegoing applies equally to computer programs of South African origin and to computer programs of foreign origin.

The exclusion of a "computer program" from the definition of "literary work" was brought about in 1992 when the sui generis category of copyrightable work, namely "computer program" was created. As explained above, the effect of this was to bring about a situation that all computer programs made subsequent to 1 January 1979 were protected as "computer programs". The objective was to make "computer programs" and "literary works" mutually exclusive categories of works. The term "computer program" is defined in Section 1 of the Copyright Act to mean "a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result". The preparatory workings made in the course of creating a computer program are not excluded from the definition of "literary work", and thus qualify as literary works. Only once the work is capable of description as a set of instructions fixed or stored in any manner and which when used directly or indirectly in a computer directs its operation to bring about a result has a "computer program" come into being and is the work thus excluded from being a literary work. Factors which influenced the creation of the sui generis category of copyrightable work "computer program" were the difficulty of proving authorship of a computer program as a literary work for purposes of litigation, the nature of some of the infringing acts, the necessity to make provision for the making of back-up copies and the practicalities of instituting copyright infringement litigation together with the burden of proof under South African litigation procedure.

The restricted acts in respect of a computer program provided for in Section 11B(e) of the Copyright Act, namely "letting, or offering or exposing for hire by way of trade, directly or indirectly, a copy of a computer program" does not apply to literary works. These restricted acts are of great importance in regard to the commercial exploitation of computer programs and it was considered desirable that computer programs should enjoy this form of protection which was not available to them while they were treated as a species of literary work.

The amendment to the restricted acts relating to computer programs is included in the Bill regarding TRIPS compliance which is expected to be enacted before the end of this year.

The basic requirement for the subsistence of copyright in a work is that it must be original (Section 2(1) of the Copyright Act). "Originality" does not mean that the work must be in any way unique or inventive but merely that it should be the product of the author's own labours and endeavours. A work can be original notwithstanding that it has been copied from a previous work provided sufficient skill and effort have been embodied in creating the subsequent work. An adaptation, such as a translation, is thus clearly capable of being "original". In this regard Section 2(3) of the Copyright Act is relevant. The Section reads as follows: "A work shall not be ineligible for copyright by reason only that the making of the work, or the doing of any acts in relation to the work, involved infringement of copyright in some other work".

Sections 12(1) - (7) of the Copyright Act are exceptions to copyright infringement derived from Articles 2bis(2), 9(2), 10(1), 10(2), 10bis(1) and 13(1) of the Berne Convention. They describe situations which are in the view of the legislature such that they do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. In Section 12(1) there is the added qualification that the work must be a "fair dealing". This provision enables the court to exercise a further discretion to ensure that the conduct in question does not conflict with the normal exploitation of the work or unreasonably prejudice the legitimate interests of the author. Section 12(9) merely clarifies that the aforegoing exceptions apply to an adaptation of a work in the same way as they apply to the work itself. Section 12(11) gives effect to the same principle. It is submitted that Sections 12(9) and 12(11) are not at variance with the cited provisions of Berne and TRIPS.

The original title of the so-called "Designs Act 1916" was the "Patents, Designs, Trade Marks and Copyright Act 1916". This was a compendious statute dealing with all the species of intellectual property law. In the 1960s separate statutes dealing with each of the species were passed. As each of the separate statutes was adopted the subject matter of that statute was deleted from the title of the 1916 Act. By the time it was finally repealed it dealt only with designs and was thus at that time referred to as the "Designs Act". The Third Schedule to the 1916 Act was a reproduction of the British Copyright Act of 1911, the so-called "Imperial Copyright Act". Insofar as it related to copyright, the 1916 Act provided that the British Act of 1911 (embodied in the Third Schedule) would apply in South Africa, subject to some minor variations. Prior to 1965 cinematograph films were protected as dramatic works (by the British Copyright Act of 1911). From 11 September 1965 cinematograph films were protected as a sui generis species of work but this protection qua species was not retrospective under that Act. Consequently, when the Copyright Act 1978 came into operation there were in existence pre-1965 films treated as dramatic works and post-1965 films treated as cinematograph films. In 1978, the legislature decided that, contrary to the general principle of not creating copyright in types of works which were not eligible to copyright prior to 1965 (Section 43(a)(ii), pre-1965 films (protected as dramatic works) would retrospectively be protected as cinematograph films. New copyrights were in this way created in subject matter which already enjoyed copyright as dramatic works. In other words from 1979 these films enjoy parallel copyrights in two different categories. As this state of affairs could give rise to practical difficulties the qualifications in Section 43(c) were introduced so as to give precedence to the cinematograph film copyright over the dramatic work copyright. In general the two parallel copyrights are in practice owned by the same person. It is submitted that there are no limitations to exclusive rights in Section 43 which conflict with the normal exploitation of the work and unreasonably prejudice the legitimate interests of the rightholder.

See reply to EC question 7.

The definition of "cinematograph film" in Section 1 of the Copyright Act states that a cinematograph film "includes the sounds embodied in a sound-track associated with the film". "Sound-track" in this context means that part of a cinematograph film which incorporates sounds heard when the film is exhibited. However, it is customary at the present time for records of music and other sounds embodied in the sound-track of a film to be distributed in the audio market in the form of discs, tapes, etc. ("records"). Section 16(2) in effect provides that when a soundtrack record is used (i.e. broadcast, performed in public and the like) such use cannot constitute an infringement of the copyright in the cinematograph film. This provision takes cognisance of the situation in the marketplace and recognises that a sound-track record is a separate commercial commodity to the film and is indeed a separate work for purposes of copyright. Obviously the making of the soundtrack record will impact upon the copyright in the cinematograph film but once the record has been made and released its further use has no bearing on the copyright in the cinematograph film.

Section 19B(2) does permit the making of multiple copies provided the copying as such as well as the quantities of copies are "reasonably necessary ... for back-up purposes". There has been no judicial interpretation to date of the term "reasonably necessary" but it can be expected that it will be interpreted in a similar manner to the interpretation of the term "fair dealing" in Section 12(1). Although this term has not been judicially interpreted in South Africa as yet, it is widely accepted that our courts will be guided by United States jurisprudence on the question of "fair use".

The Czech legislation provides protection for works and performances from other WTO Members on the basis of national treatment according to Article 50 paragraphs 2, 4 and 5. Relevant provisions of the Copyright Act read as follows: (2) To works of foreign nationals the provisions of this Act shall apply pursuant to international treaties, and if no such treaties exist, their reciprocity shall be guaranteed. (4) Copyright relating to the works of foreign nationals may not last longer than that in the country of origin of the work. (5) Above mentioned provisions shall apply per analogiam also to performing artists and their performances. The international treaty mentioned in paragraph 2 is inter alia the TRIPS Agreement. We would like to stress that the Czech Copyright Act provides protection for work of foreign authors and for performers on the level of national treatment and to the extent provided by international agreements to which the Czech Republic is a contracting party. The rights of producers of phonograms and broadcasting organizations are protected on the basis of international agreements or if the reciprocity is granted. The Copyright Act involves the provisions regarding private copying in Article 13 paragraphs 2 and 3. The remuneration for private copying is granted to authors, performers, producers of phonograms and broadcasting organizations. Broadcasters shall not enjoy such a right in the case that they transmit broadcasting of other broadcasters. The remuneration is subject to the collective administration and for blank tapes two collective organizations operating in this field. The remuneration is provided on the basis of blank tapes' sales price's percentage. Collective societies distribute the remuneration to authors, performers and producers of phonogram's broadcasters and also to foreign collective societies on the basis of their agreement.

The Czech Republic does not apply the "rule of the shorter term" to phonograms and performances from other WTO Members. The term of protection of performers is fifty years starting from the end of the year in which a recording of performance was made. The same period is adopted for producers of phonograms and it starts at the end of the year when such recording was made.

According to Article 46 of the Czech Copyright Act, in which rights of phonograms producers are stipulated, the permission of the phonogram's producer is required for broadcasting of sound recordings and phonograms by radio or television, for production of reproduction of phonograms for other than own personal use, for public performance of sound recording and for lending and rental. Reproduction of phonograms by digital transmission in the context of interactive services is not expressis verbis in our Copyright Act but as we have a very broad provision regarding publication of the work, it can be used also for the digital transmission providing that the exclusive permission of authors, performers and producers is available.

The Czech Republic provides full protection to works, phonograms and performances from other WTO Members as required by TRIPS Articles 9.1, 14.6 and 70.2. Author's works are protected fifty years after their death, it means since 1946. The right of phonogram producers is protected fifty years since the end of the year in which the sound recording was made, it means since 1946 as well. The right of performers is protected fifty years starting at the end of the year in which recording of performance was made.

In accordance with Article 55 of the Constitution, international agreements are directly incorporated into the internal legal system. France has been a party to the Berne Convention since 5 December 1887. The two fundamental rules laid down by the Berne Convention in favour of authors, national treatment and moral rights, are therefore granted to foreign authors. Levies for private copying for American authors of musical and audiovisual works are paid through collective management companies responsible under the law for collecting and distributing the levies.

The Law of 3 July 1985 (Article L-211.4, Intellectual Property Code) fixes the duration of protection for neighbouring rights of performers and producers of phonograms at 50 years. France complies with the provisions of European Directive No. 93/98 of 29 October 1993, which provides for the same duration (Articles 3.1 and 2).

Article L-213.1 of the Intellectual Property Code protects producers of phonograms by granting them the right to authorize reproduction of fixations and thus complies with the provisions of the Rome Convention (Article 7), ratified on 3 July 1987, Directive No. 92-100 of 1 November 1992 (Article 7) and Article 14.2 of the TRIPS Agreement. Reproduction covers any physical fixation and direct or indirect reproduction. All phonograms whose protection has not expired are protected with respect to reproduction carried out subsequently to the entry into force of the Law of 3 July 1985 (1 January 1986). In 1996, any phonogram published after or in the course of the month of January 1946 is protected.

Article 18 of the Berne Convention is incorporated into French law as a result of the ratification of the Convention and of the Universal Convention of 1952. Consequently, a work protected by copyright in its country of origin may claim protection. Hence, only works that have fallen into the public domain are not protected. All phonograms whose protection has not expired in the country of origin are protected with respect to uses made subsequently to the entry into force of the French Law of 3 July 1985 (1 January 1986).