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.

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".

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.