Intellectual Property Laws Amendment Act, 1997/Sections 50–58

Amendment of section 1 of Act 98 of 1978, as amended by section 1 of Act 56 of 1980, section 1 of Act 66 of 1983, section 1 of Act 52 of 1984, section 1 of Act 13 of 1988 and section 1 of Act 125 of 1992

50. Section 1 (1) of the Copyright Act, 1978, is hereby amended―

(a)

by the substitution for the definition of “broadcast” of the following definition:

“ ‘broadcast’, when used as a noun, means a telecommunication service of transmissions consisting of sounds, images, signs or signals which―

(a)

takes place by means of electromagnetic waves of frequencies of lower than 3 000 GHz transmitted in space without an artifical conductor; and

(b)

is intended for reception by the public or sections of the public,

and includes the emitting of programme-carrying signals to a satellite, and, when used as a verb, shall be construed accordingly;”;

(b)

by the substitution for the definition of “broadcaster” of the following definition:

“ ‘broadcaster’ means a person who undertakes a broadcast;”;

(c)

by the substitution for the definition of “cinematograph film” of the following definition:

“ ‘cinematograph film’ means [the] any fixation or storage by any means whatsoever on film or any other material of data, signals or a sequence of images capable, when used in conjuction with any other mechanical, electronic or other device, of being seen as a moving picture and of reproduction, and includes the sounds embodied in a sound-track associated with the film, but shall not include a computer program;”;

(d)

by the deletion of the definition of “Corporation”;

(e)

by the substitution for paragraph (g) of the definition of “literary work” of the following paragraph:

(g)

tables and compilations, including tables and compilations of data stored or embodied in a computer or a medium used in conjunction with a computer;”;

(f)

by the substitution for the definition of “rebroadcasting” of the following definition:

“ ‘rebroadcasting’ means the simultaneous or subsequent broadcasting by one [broadcasting organization] broadcaster of the broadcast of another [broadcasting organization] broadcaster;”;

(g)

by the substitution for the definition of “record” of the following definition:

“ ‘record’ means any disc, tape, perforated role or other device in or on which sounds, or data and signals representing sounds, are embodied or represented so as to be capable of being automatically reproduced [therefrom] or performed therefrom;”; and

(h)

by the substitution for the definition of “sound recording” of the following definition:

“ ‘sound recording’ means any fixation or storage of sounds, or data or signals representing sounds, capable of being reproduced, but does not include a sound-track associated with a cinematograph film;”.

Amendment of section 2 of Act 98 of 1978, as amended by section 2 of Act 56 of 1980, section 2 of Act 52 of 1984 and section 2 of Act 125 of 1992

51. Section 2 of the Copyright Act, 1978, is hereby amended by the substitution for subsection (2) of the following subsection:

“(2) A work, except a broadcast or programme-carrying signal, shall not be eligible for copyright unless the work has been written down, recorded, represented in digital data or signals or otherwise reduced to a material form.”.

Amendment of section 3 of Act 98 of 1978, as amended by section 3 of Act 52 of 1984 and section 3 of Act 125 of 1992

52. Section 3(2) of the Copyright Act, 1978, is hereby amended by the substitution for paragraph (b) of the following paragraph:

“(b)

cinematograph films, photographs and computer programs, fifty years from the end of the year in which the work―

(i)

is made available to the public with the consent of the owner of the copyright; or

(ii)

is first published,

whichever term is the longer, or failing such an event within fifty years [from] of the making of the work, fifty years from the end of the year in which the work is made;”.

Substitution of section 11B of Act 98 of 1978, as inserted by section 10 of Act 125 of 1992

53. The following section is hereby substituted for section 11B of the Copyright Act, 1978:

“Nature of copyright in computer programs

11B. Copyright in a computer program vests the exclusive right to do or authorize the doing of any of the following acts in the Republic:

(a)

Reproducing the computer program in any manner or form;

(b)

publishing the computer program if it was hitherto unpublished;

(c)

performing the computer program in public;

(d)

broadcasting the computer program;

(e)

causing the computer program to be transmitted in a diffusion service, unless such service transmits a lawful broadcast, including the computer program, and is operated by the original broadcaster;

(f)

making an adaptation of the computer program;

(g)

doing, in relation to an adaptation of the computer program, any of the acts specified in relation to the computer program in paragraphs (a) to (e) inclusive;

(h)

letting, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the computer program.”.

Amendment of section 12 of Act 98 of 1978, as amended by section 11 of Act 125 of 1992

54. Section 12 of the Copyright Act, 1978, is hereby amended by the substitution for subsection (5) of the following subsection:

“(5)(a) The copyright in a literary or musical work shall not be infringed by the reproduction of such work by [the Corporation] a broadcaster by means of its own facilities where such reproduction or any copy thereof is intended exclusively for lawful broadcasts of the [Corporation] broadcaster and is destroyed before the expiration of a period of six months immediately following the making of the reproduction, or such longer period as may be agreed to by the owner of the relevant part of the copyright in the work.

(b) Any reproduction of a work made under paragraph (a) may, if it is of an exceptional documentary nature, be preserved in the archives of the [Corporation] broadcaster, but shall, subject to the provisions of this Act, not be used for broadcasting or for any other purpose without the consent of the owner of the relevant part of the copyright in the work.”.

Amendment of section 24 of Act 98 of 1978, as amended by section 21 of Act 125 of 1992

55. Section 24 of the Copyright Act, 1978, is hereby amended by the substitution for subsections (1A), (1B) and (1C) of the following subsections, respectively:

“(1A) In lieu of damages the plaintiff may, at his or her option, be awarded an amount calculated on the basis of a reasonable royalty which would have been payable by a licensee in respect of the work or type of work concerned.

(1B) For the purposes of determining the amount of damages or a reasonable royalty to be awarded under this section or section 25(2), the court may direct an enquiry to be held and may prescribe such procedures for conducting such enquiry as the court considers necessary.

(1C) Before the owner of copyright institutes proceedings under this section, he or she shall give notice in writing to the exclusive licensee or sub-licensee of the copyright concerned of the intention to do so, and the exclusive licensee or sub-licensee may intervene in such proceedings and recover any damages he or she may have suffered as a result of the infringement concerned or a reasonable royalty to which he or she may be entitled”.

Amendment of section 25 of Act 98 of 1978, as amended by section 21 of Act 125 of 1992

56. Section 25 of the Copyright Act, 1978, is hereby amended by the substitution for subsection (2) of the following subsection:

“(2) Before an exclusive licensee or sub-licensee institutes proceedings under subsection (1), he or she shall give notice in writing to the owner of the copyright concerned of the intention to do so, and the owner may intervene in such proceedings and recover any damages he or she may have suffered as a result of the infringement concerned or a reasonable royalty to which he or she may be entitled.”.

Substitution of section 34 of Act 98 of 1978

57. The following section is hereby substituted for section 34 of the Copyright Act, 1978:

“Diffusion service

34. In a dispute concerning the transmission of broadcasts in a diffusion service in the Republic, the tribunal shall disallow any claim under this Act to the extent to which the licences of the broadcaster concerned provide for or include such transmission in a diffusion service.”.

Substitution of certain word in Act 98 of 1978

58. Sections 6(e), 7(d), 8(1)(d) and 10(c) of the Copyright Act, 1978, are hereby amended by the substitution in the Afrikaans text for the word “voortgesit”, wherever it occurs, of the word “bedryf”.