États-Unis d'Amérique
Afrique du Sud
Droit d'auteur et droits connexes
7. Please explain how the general exceptions to adaptations and translations of Sections 12(9) and 12(11) of the Copyright Act comply with Berne Article 9(2) and TRIPS Article 13, which require limitations and exceptions to exclusive rights to be limited to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder.
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.