Specific exceptions to copyright infringement
In addition, there are some specific exemptions from infringement which relate to certain works.
Musical works and the statutory notice exception
If authorised recordings of a musical work have been sold in South Africa, you do not infringe copyright in the musical work by making recordings of the musical work and selling them. However, you must have given what is referred to as the statutory notice and paid the royalties prescribed by regulation, in both cases in advance. This statutory licence is a form of compulsory licence.
Note: This relates only to the musical work, not sound recordings. It applies, typically, where an artist records their own version (a cover version) of a song and sells the CDs.
There is a bit more detail involved in the statutory notice. Contact a copyright lawyer, CAPASSO, or music publishers such as Gallo Music Publishers and Geoff Paynter.
Read section 14 of the Copyright Act.
Incidental inclusion of artistic works
It is not an infringement to reproduce an artistic work in a film or television broadcast if the reproduction is incidental or part of the background to the main story. It is also not an infringement if the artistic work is permanently situated in a public place where the filming is taking place.
Read sections 15(1) and 15(3) of the Copyright Act.
Reverse engineering and artistic works
Remember that it is an infringement if, without permission, you reproduce a 2D artistic work by producing a 3D version — for example, to make an engine part from the manufacturing drawing.
We took a brief look at reverse engineering in Reproduction in any manner or form in the context of reproduction. To reverse engineer a 3D part, which is made from 2D drawings, is to reproduce those 2D drawings (albeit indirectly). It is not an infringement of the copyright in the drawings (or if the original artistic work was 3D) to reverse-engineer from authorised 3D reproductions of that original work. However, this only applies if the authorised 3D reproduction (the one that is copied) has (a) an utilitarian purpose and (b) is made by an industrial process.
Read section 15(3A) of the Copyright Act.
Here’s an example: A designer at a ceramics factory creates drawings for a new hand basin. Moulds are made from the drawings, and the factory mass-produces basins which are sold in stores nationwide. A competitor buys one of the basins and reverse engineers it to perfection. This is not an infringement. However, illogical thought it may seem, it will be an infringement if the competitor gets hold of copies of the designer’s drawings, and uses them to produce its competitive basins.
Computer programs and backup copies
It is legit to make a backup copy of a program for your personal use if you are in lawful possession of the program.
You must remove or destroy the backup copy if you are no longer in lawful possession of the program — for example, if your software licence has expired.
Read section 19B(2) of the Copyright Act.