États-Unis d'Amérique
Afrique du Sud
Droit d'auteur et droits connexes
8. Please explain the provisions of the Third Schedule to the Designs Act as referred to by Section 43 of the Copyright Act, and how the limitations to exclusive rights in this Section 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.
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 By the time it was finally repealed it dealt only with designs and was thus at that time referred to as the "Designs Act".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.