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Reproduction and the exclusive rights

The basic position is that the copyright owner has the ability to prevent anybody else from doing anything that involves reproducing the work, but this concept of reproduction is treated differently for each kind of work. Put differently, the statute frames the effect of copyright in different acts which are exclusive to the copyright owner.

Exclusive rights for literary works

As the owner of copyright a literary work, you have the right (to the exclusion of everybody else) to do the following things.

To reproduce the work in any manner or form.

This embraces a wide scope of activities: Let’s use the lyrics of the beautiful song ‘Make You Feel My Love’ as an example. Although the song was made famous by Adele, it was composed by Bob Dylan. The lyrics can be reproduced by:

All of these acts reproduce Bob Dylan’s lyrics.

To publish the work

This means to issue copies of the work to the public. This book you are reading has been ‘published’.

To perform the work in public

If you and a few friends do a reading of the first chapter of Deon Meyer’s book Trackers as part of a school variety concert, you probably are performing the work in public.

Broadcasting the work

Each time a song is played on the radio, the lyrics are being broadcast.

Diffusion services

Typically, the piped music you get in shopping malls, hotels, and elevators comes through a diffusion service. Causing a literary work to be transmitted in a diffusion service is another right reserved exclusively for the owner of the copyright.

Adapting the work

I have pointed out that reproduction does not mean only an exact copy — word-for-word, note-for-note. If the work has been substantially reproduced then it is a ‘reproduction’ for the purposes of the statute. However, adapting a work is also an activity exclusively reserved for the copyright owner. A translation, for example, is an adaptation. A film script is a particular kind of (literary) work where the actors are shown what to do and what to say — hence, a film script made from a book (all the Harry Potter movies, for example) is an adaptation. Other examples of adaptation would include writing a book based on a film script, or creating a comic book based on a written story.

Deon Meyer’s book Trackers was written in Afrikaans, with the title Spoor. The English version Trackers is a translation — and therefore an adaptation. The film script for the current television series Trackers is an adaptation of that English translation. The Trackers audiobook is a reproduction of the adaptation.

The copyright owner also has the exclusive right to all the activities described above in respect of an adaptation of his work.

Read section 6 of the Copyright Act.

Exclusive rights for musical works

The exclusive rights here are the same as for literary works, but some examination in the context of musical works is necessary.

By way of introduction, let’s first go back to the nature of a musical work. When you hear Adele’s song ‘Make You Feel My Love’ played on the radio, what you hear is her performance of the musical work. The musical work itself, the one in which copyright subsists, comprises a series of guitar and piano chords combined with the melody of the vocal line. These might have been scribbled by Bob Dylan on a piece of paper or recorded in his home studio as he was composing.

The orchestral compositions of the great composers, for another example, were written down in music notation, which only trained musicians understand. Here is an example of the script (or sheet music) for the opening bars of ­Beet­hoven’s famous 5th Symphony. Of course, because Ludwig van Beethoven died in 1827, his works are no longer in copyright.

Remember, copyright does not vest in a work until it is written down, recorded or reduced to a material form. The music is what we hear, but sheet music — the written notes and instructions — also represent the musical work. The sheet music, therefore, is the written-down version of the musical work. In this way, the sheet music stands in (when it comes to some of the exclusive rights) for the musical work.

There are several organisations and private bodies involved in music rights, and the licensing and publishing of music. Look at the following websites for further details and information about their functions:

Let’s now look at the exclusive rights concerning music.

To reproduce the work in any manner or form

We can imagine how this kind of work can be reproduced — remember, it is ‘in any manner or form’. Here are a few ideas, again some similar to the literary work examples.

‘Mechanicals’ is a term used by composers. Making a physical copy of a recording of a musical work is what is implicated by ‘mechanical’ rights.

To publish the work

We know that ‘publishing’ means to make the work available to satisfy the demands of the public, and this is what a music publisher does. Music publishing plays an important role in the commercialisation of compositions.

By the time a music CD is released and put on sale, quite a few copyright things have happened to the musical work(s) involved. First, it was reproduced when the band performed it in the studio at the time of recording. Next, it was reproduced when it was recorded — the digital data on the hard drive is a record of the musical work in another form. When the master was produced from the studio hard drive, another reproduction took place. Each time a CD is burned from the master, or a vinyl pressing is made, yet another reproduction of the musical work takes place.

But no publication has yet taken place, has it? The musical work is only ‘published’ when the CD is put on sale.

Similarly, when you download a song sheet (for example) from the internet, someone has already published the song sheet (a written-down version of the musical work), by making it available for you to download. Songbooks in the music shops are another example of published musical works.

Performing the work in public

If your band plays a version of Johnny Clegg’s song ‘Asimbonanga’ at a packed student pub, it performs the work in public.

Broadcasting the work

When a piece of music is played on the radio or on television, it is being broadcast.

Due to the specific definition of ‘broadcast’ (see Broadcasts) it is debatable whether streaming falls within the definition.

Diffusion service

As mentioned, the piped music found in shopping malls (for example) comes through a diffusion service.

Making adaptations

We have seen that an ‘adaptation’ is something different from reproduction, and involves a modification, change, or transformation of the work but in such a way that its features remain recognisable. Here are some examples.

Remember, the copyright owner also has the exclusive right to all the activities described above in respect of an adaptation of his musical work.

Read section 6 of the Copyright Act.

Exclusive rights for artistic works

As the owner of copyright in an artistic work, you have the same rights (to the exclusion of everybody else) applicable to literary works. However, it is helpful to look at how the more important rights will unpack with the various artistic works.

Reproduction in any manner or form

Think of how you could reproduce an artistic work. Let’s say you paint a portrait of your cat — that’s an artistic work. Your friend takes a photograph — that’s a reproduction of your artistic work; and then puts the photograph on Instagram — another reproduction. Then someone downloads the photograph (another reproduction) and prints it out (another reproduction), and then paints a picture from the print (another reproduction).

A conversion of a two-dimensional (2D) artistic work into a three-dimensional form (3D) is also a reproduction. The sole purpose of an architect’s drawings, for example, is for them to be converted into a building. Likewise, manufacturing drawings prepared by a design engineer serve as the blueprint for the eventual engine part.

Similarly, to convert a 3D work into a 2D version is a reproduction of the 3D work. This would happen, say, by painting a picture of a famous statue (a 3D artistic work) — or even taking a photograph of it.

The conversion process happens in ordinary reverse engineering. Let’s say we are dealing with a part for an engine. Traditionally, forward engineering is where the design engineer prepares manufacturing drawings, which are then sent to a patternmaker, who produces a 3D model in wood or another modelling material. Then moulds are made from this model. Molten metal is poured into the mould, and when it has cooled and set, the mould is taken apart, and there stands the engine part. In this process, each stage — from pattern to mould to part — is a 3D version of the 2D drawing.

In reverse engineering, traditionally, the engine part is measured up — all the dimensions, curvatures, radii, and so on. This data is used to produce a manufacturing drawing — one works backwards from the part itself to produce the drawing. So here, the 3D part has been converted into a 2D drawing. If you think about it, this 2D drawing is, in effect, a reproduction of the original manufacturing drawing. Nowadays, this process is easy because a 3D scanner digitally measures up the part, and if a drawing is required it can be produced using computer-aided design software. Even more simply, a 3D printer just prints the part. It is nonetheless a reproduction.

Publishing the work

‘Publishing’ means to make copies of the work available to the public. Let’s say the artistic work is my daughter’s painting of a king protea flower. I make 200 greeting cards with the painting on the front and a little message inside. I have reproduced the painting. Once I put the cards out for sale at the next craft market, I have ‘published’ the painting.

Similarly, say your young son has made a fancy coffee mug in his Grade 7 pottery class — it is a 3D artistic work. If you take it off to some crockery factory and they make 500 replicas which you then sell to Shoprite Checkers, it becomes ‘published’ once the mug appears on the shelves.

Including the work in a film or television broadcast

This type of reproduction would happen where, for example, a documentary is made of the artwork of the top students at Michaelis Art School at the University of Cape Town. Or, if a TV journalist is covering some student protests live, and their colourful graffiti is captured in the broadcast. If these programmes are then also transmitted in a diffusion service, this (in itself) is again an act of reproduction.

Making an adaptation of the work

Adaptation in the context of copyright means, essentially, to modify the work. Accordingly, a transformation of an artistic work is an adaptation, provided the main features of the original work remain recognisable. We know that transformation means change, and the word has its origins in ‘trans’ (into another state) ‘form’ (shape, or nature).

So, if you draw a cartoon version of the famous picture where the Springbok captain, Francois Pienaar, received the 1995 Rugby World Cup from the President, Nelson Mandela, and you give them the features of favourite South African wildlife — a springbok and a magnificent lion, say — this could be an adaptation.

The copyright owner also has the exclusive right to all the activities described above in respect of an adaptation of the work.

Read section 7 of the Copyright Act.

Exclusive rights for cinematograph films

From the copyright point of view, movies are a combination of various kinds of works in one form or another. There is music — in the soundtrack; there is dialogue — a reproduction of part of the script, a literary work; the entire story played and acted out in the movie is a reproduction of the dramatic work (being the film script) and there can also be computer programs involved in CGI (computer-generated imagery) scenes. And animation is a series of artistic works.

In this way, we can say that cinematographic films are a basket of different works. Therefore, when a cinematograph film is copied — say you rip from a DVD — a reproduction of all of these works is taking place.

But the cinematograph film itself has a copyright, independent from the rights in all the works involved in the film. (As we will see when it comes to ownership, all of these rights can have different owners.) Let’s now look at what copyright in a cinematograph film means — what are the exclusive rights?

Reproducing the work in any manner or form

Remember that the work (see Cinematographic films) is the fixation of a sequence of images. That ‘fixation’ happens during filming. Lots of footage shot during filming does not make it into the eventual movie, but is still ‘cinematograph film’. In the editing and post-production process of movie-making, the director will select the sequences and footage to make up the movie which gets released.

Now what happens (basically) for us to see a movie in the theatre is a series of reproductions. Each theatre gets a reproduction to show; in today’s world the films are digital, so the reproduction is effected digitally. Until not so long ago, a physical copy — a 35 mm celluloid strip of film — would be sent to each theatre for screening.

When the movie gets put onto DVD, that’s another reproduction; same when streamed on Showmax, for example. If you record the movie on your decoder, that’s a reproduction.

It is also a reproduction of the cinematograph film to make a still photograph from it.

Causing the film to be seen or heard in public

If you play a movie on your home computer, you are reproducing it. If you have a ‘movie-night’ at home and invite 20 of your friends around to watch, you are causing it to be seen in public.

There is an important distinction between these two acts. They are different rights owned by the copyright owner and, as we see when dealing with infringement, each act (if unauthorised) is unlawful and so the compensation the owner might claim will be different.

Thus, if I post a movie (or even part of it; even a still photograph) say on my website, or Facebook page, I am causing it to be seen in public.

When an airline puts movies, series and television programmes through its on-board entertainment, it is causing them to be seen in public.

Broadcasting the film

When a film is screened by SATV on television, it has been broadcast.

Transmitting in a diffusion service

Many years ago, hotels might put movies on for viewing in each room. This is a diffusion service.

Making an adaptation of the film

Producing an animated version of an existing movie would be making an adaptation.

The current spate of remakes (A Star is Born being a good example — the most recent release with Lady Gaga and Bradley Cooper is the third remake — in other words, the fourth version!) raises an interesting question: is each remake an adaptation of the movie which went before? The answer has to be that it depends. Because the work (in which copyright is vested) is the fixation of a sequence of images, for there to be an adaptation, that fixation has to be transformed, modified, adapted. Remember, the underlying story — think of Shakespeare’s play Romeo and Juliet, for example — is a different copyright work.

The copyright owner also has the exclusive right to all the activities described above in respect of an adaptation of the work.

The rental right

Many of us will remember the video-rental outlets, now a thing of the past. Most of the court cases involving copyright in cinematograph films are from the 1980s and involved video outlets renting out unauthorised copies of movies on VHS or Beta tapes or DVDs. This is because to let or hire a copy of the film is reserved exclusively for the copyright owner.

Read section 8 of the Copyright Act.

Exclusive rights for sound recordings

Sound recordings are not only about music. For example, on the Sasol eBirds of Southern Africa app you can hear the calls of most of our birds. These are sound recordings of the actual bird calls. When you send a voice-note on WhatsApp, that is also a sound recording.

However, sound recordings relate mostly to music. Every time you hear music (unless it is in a live performance) you will be hearing a sound recording. And, guess what? Sometimes, in live performances, there are also sound recordings being played. Every backing track involves a sound recording; when Jeremy Loops performs, every time he creates a loop on stage, he is making a (mini) sound recording.

Remember, the sound recording is a different copyright work from the recorded musical work and/or lyric. Copyright protection is granted to sound recordings, largely, because it takes a huge amount of investment in terms of equipment, facilities such as soundproof studios, technically competent recording engineers, skilled producers, and session musicians. So, whilst Bob Dylan’s song ‘Make You Feel My Love’ has its own copyright as a musical work, Adele’s version which became such a hit is the result of all this input. When she practised it at home, she probably made a demo recording on her own computer; but the version which became a hit had a completely different treatment, and was a different performance by her.

Of course, home recordings are much easier these days — apps like GarageBand and software like Pro Tools mean that a recording on your home computer can be really fancy. However, the nature of the copyright and the protection available is just the same.

Making a record of the sound recording

Technically, the right is to make ‘directly or indirectly, a record embodying the sound recording’. A ‘record’ is anything on which sounds can be recorded — tape, disc, hard drive, flash sticks, etc.

So, when you burn a copy of your friend’s CD, or share a file, or download from iTunes — these are all examples of making a recording. As we shall see, if it is licensed by the copyright owner, it is legit; if not, it will probably be an infringement.

The rental right

We have looked at this in the context of cinematographic films (in the previous subsection) and it is the same thing.

If you want to use a particular sound recording for an ad campaign, you are not renting the sound recording: you will make a reproduction and communicate it to the public. However, if you subscribe to Apple Music and Spotify, they probably ‘rent’ the sound recording to you. When you cancel your subscription, those downloaded songs will be removed from your device.

Broadcasting

Note: There is a difference between the broadcast of a live concert and the broadcast of a recording of that live concert.

We look at needletime royalties in the context of infringement.

Diffusion service

Many years ago, drive-in cinemas were fashionable. One would park the car, remove a loud speaker hanging on a post at your parking spot, and clip it onto the driver’s window. These loud speakers were all wired to the central projection building and provided the soundtrack. This was a form of diffusion service.

Communicating the sound recording to the public

This is different from broadcasting. With broadcasting, there has to be a receiver (a radio, for example) which is tuned in to receive the broadcast. The sound recording is still broadcast even if no one ever listens to it.

Conversely, communicating the sound recording to the public is when the recording is actually played to the public at a nightclub, in a church service, at a soccer match, and so on.

Here’s another example of how copyright can be quite tricky. If you have the radio on in your back office at the family restaurant, the station will broadcast a sound recording to you. If you switch on the loudspeakers in the restaurant itself, so that all your patrons can hear what is on the radio, you — not the broadcaster — will be communicating the sound recording to the public.

These different acts have important consequences — we look at these in the context of infringement and the payment of royalties.

Read section 9 of the Copyright Act.

Exclusive rights for broadcasts

Let me offer a reason why broadcasts are considered to be eligible for copy­right protection. Remember, the statute comes from a time when there was no internet, no YouTube, no file-sharing or streaming. The law-makers (Parliament) were, at the time, catering for commercial ventures which involved, or generated, intellectual property and which needed protection.

To produce a broadcast is quite an operation. Let’s take as an example Nimrod Nkosi’s talk show Your Late Mate (screened a few years ago on Soweto TV) and let’s imagine it was a live-on-air (in other words, not pre-recorded) show. Lots of things have to happen for that show to be broadcast. There has to be a studio, for starters. It has to be decorated and equipped. The studio needs expensive equipment for broadcasting, and it must have a broadcasting licence. Camera, makeup, lighting and sound crews are part of the package. The talk show guest has to be brought to the studio. Presenters like Nimrod Nkosi are skilled, experienced and talented and have to be recruited to host the show. He has to be paid, as do all the crew members.

All of this takes a lot of investment in terms of time, training, preparation, rehearsal and — importantly — money. The resulting product, the live broadcast, deserves some form of protection, and copyright is the best way of doing it.

Broadcasting a live sports event, for another example, is the same thing. In professional football matches, there are dozens of cameras and microphones all around the pitch and stadium — and above, too. There is a producer who decides which camera shot of which particular few seconds of the game should be screened. All of this requires skill and expertise — and which is of an intellectual nature.

Technically, a broadcast is a telecommunication service of transmissions consisting of sounds, images, signs or signals which takes place using electromagnetic waves of frequencies of lower than 3 000 GHz transmitted in space without an artificial conductor; and is intended for reception by the public or sections of the public and includes the emitting of programme-carrying signals to a satellite.

Here are the exclusive rights:

Reproducing the broadcast (in any manner or form)

If you record the broadcast, you make a reproduction. If it is a television broadcast (i.e. it has visual components, as compared to a radio broadcast, which is only audio), making a still photograph from the broadcast is also considered a reproduction.

Rebroadcasting

If another station broadcasts (at the same time, or later) Soweto TV’s broadcast of the live show Your Late Mate, that is a rebroadcast.

Transmitting in a diffusion service

Instead of the old-fashioned hotel transmitting its choice of movies for the night, it might convey the 8 o’clock news on its diffusion service.

Read section 10 of the Copyright Act.

Exclusive rights for programme-carrying signals

The exclusive right here is the right to distribute the signal. Note the spelling: a programme-carrying signal. A program denotes computer software, whereas a programme relates to a radio or television show: as in “my favourite programme on TV”.

Read section 11 of the Copyright Act.

Exclusive rights for published editions

The exclusive right is to reproduce the edition in any manner or form.

Read section 11A of the Copyright Act.

Exclusive rights for computer programs

Let’s recap the nature of a computer program insofar as copyright is concerned. The legal definition is: ‘A set of instructions fixed or stored in any manner which when used directly or indirectly in a computer directs its operation to bring about a result.’

As I have mentioned, this would include a basic app for your smartphone. The statute does not say what a computer is, but it is generally accepted that it is a device that works digitally, with electronic circuitry. To keep our discussion simple, let’s think of the Microsoft web-browser Edge: it causes your PC to operate in particular ways. If you loaded Mozilla Firefox onto your PC instead, it would cause it to operate in different ways.

A computer program is a set of instructions, consisting of the source code and the object code. Leaving aside AI, computer software is created by human beings. To create a set of instructions, the (human) programmer will map out the instructions using a programming language, a language a human can understand. Some of the first programming languages were COBOL and Java; modern languages include C#, Python and Javascript. This set of instructions compiled by a human being is called the source code.

However, equipment cannot understand human languages. Computers can only respond to electrical impulses, and so the set of instructions has to be converted from human language into a machine-readable medium that will allow the electrical impulses to flow according to the instructions of the particular software. The machine-readable version of the source code is called the object code. It is produced by software known as a compiler, which effectively translates the human-readable source code into the machine-readable object code, or object file. By now it will be clear that the ‘set of instructions’ in which the copyright subsists is the source code. The object file is a reproduction of the source code in a different form.

Reproducing the program in any manner or form

Here are some of the ways in which a computer program can be reproduced:

Publishing the program

Publishing means making copies of the program available for public consumption.

Broadcasting the program

This would be a way of sending the program to many people.

Transmission in a diffusion service

This would be a similar exercise but not wireless.

Making an adaptation

An adaptation would be to produce a version of the program in a different language, code or notation or making a fixation of the program in a different medium.

The copyright owner also has the right to the exclusive activities set out above in respect of an adaptation of the computer program.

Rental right

The right to let or hire out a copy of the computer program is reserved exclusively for the copyright owner.

Read section 11B of the Copyright Act.