ELLECTUAL PROPERTY II: GROUP

ATIC WORKS & MUSICAL WORKS

EL MAPETE 201201050
ETSANG SENTLE 201202032
A SIANE 201200069
LOFELO TSHOLOFELO 2000800061
 A. SCOPE AND COVERAGE

The terms dramatic works and musical works are provided for under Section 2 of the Copy
Rights and Neighbour Rights Act. The protection of these two concepts is provided for under
Section 3 of the Act. It is stipulated that for literal and artistic work to be subject to
protection, they have to be original Section 3 subsection 2 paragraphs (b) and (c) further
provide for the protection of dramatic and musical works. The term originality as discussed
by the previous group is read in a limited sense. The work must originate from the author. In
the case of University of London Press v University Tutorial Press, Peterson J said :

The word original does not in this connection mean that the work must be the expression of
original or inventive thought. Copyrights are not concerned with the originality of ideas, but
with the expression of thought.

i. DRAMATIC WORKS

Dramatic works are very difficult to define since the definition itself in the Act is
brief, it does not detail exactly what dramatic works are. As per Section 2
dramatic works in this context is said to include work of dance and mime. Since
copy rights protect an expression of an idea rather than the idea itself, it can be
deduced that dramatic works in this instance will refer to performances put into
action such as screenplays, opera, ballet and so forth and this is said to be works
that can be physically performed. Copyright in a dramatic work can be claimed
for choreographic show of the work, the script or the scenario in case of a
cinematograph film, but does not include the film itself. It should be borne in
mind that Dramatic work also includes the script or lines for a performer as well
as choreographic notation. In short, any work that is intended to be performed
would be covered as a dramatic work. Therefore the types of published or
unpublished dramatic works that may be submitted for registration include
choreography, pantomimes, plays, treatments, and scripts prepared for cinema,
radio, and television. These works may be with or without music.

It is said that generally, dramatic works such as plays and radio or television
scripts are works intended to be performed. Dramatic works usually include
spoken text, plot, and directions for action. Therefore it has to be emphasized that
certain matters of a dramatic work will not be subject to protect by copyright.

These dramatic works include:

a. The title of a program or series of programs.

b. The general idea or concept for a program.

In the case of Creation Records v News Group Newspapers a photographer

secretly took a picture during an Oasis shoot of the scene that resembled their
chosen album cover photograph and published and sold it as a poster in the Sun
newspaper. Here, Lloyd J held that the subject matter of the scene itself was not
subject to copyright and was merely an assembly of 'objets trouvs.' This led him
 to the conclusion that the work was therefore not a copy of a scene. Further to this,
he concluded that the photograph was also not a copy of the official photograph,
but that it was merely a shot of the same scene:

"If the subject matter is not itself a copyright, in principle two different
photographers can take separate photographs of the same subject without either
copying the othertwo works created from a common source do not by reason of
that fact involve copying one of the other, however similar they are "

As aforementioned copyrights will protect the literary or dramatic expression of

an authors idea but not the idea itself.

ii. MUSICAL WORKS

As for musical works as envisaged by Section 2 of the Act, it means a work

consisting of music, exclusive of any words or action intended to be sung, spoken
or performed with the music. Loosely translated protection with regards to
musical works will only be granted to the sound and not the words, and such
sound should or may result from the fixation of a series of musical, spoken, or
other sounds into a tangible medium that can be played back. It is understood
under our law that if words are set to the sound the two will remain distinct works
for copyright purposes, the words will be afforded protection under literary
works. In the case of Hyperion Records v Sawkins it elaborated the definition
provided for by the Act, stating that musical works was concerned with more than
just mere noise, such sound should be intended to produce effects of some kind
on to the listeners emotion or intellect. The judge went on further to state that the
sound does not have to be one of melody or harmony or bassline, but can include
percussive effects. Furthermore it was stated that a highly knowledgeable and
skilled musicologist who prepared works by a French Composer Lalande (1657-
1726) for modern performance by adding a missing string part, figured bass and
corrections had copyrights in his edition. This goes to show how originality in
terms of copyrights does not pertain to the original idea of the author but rather it
has to be an original expression of an idea.
 B. OWNERSHIP OF COPYRIGHT IN MUSICAL AND DRAMATIC WORKS

SECTION 9(1) of the Copyrights and neighbouring Rights Act Provides that the original
owner of economic rights is the author who has created the work.

According to Section 2 Author in relation to musical works is the composer of the musical
work

Author in relation to dramatic works (That are Computer generated) is the person who makes
the necessary arrangements for the creation of the work.

SECTION 9(2) provides that where there is joint authorship the co-authors shall be the
copyright owners provided that the work consists of parts that can be used separately and
each part can be identified.

SECTION 9(3) provides further that In respect of collective work, the person at the initiative
and under the direction of whom the work has been created owns the copyright.

SECTION 2 describes work of joint authorship as work to the creation of which two or ,ore
authors have contributed, provided the work does not qualify as a collective work.

Further describes collective work as work created by two or more persons at the initiative
and under the direction of another person, with the understanding that it will be disclosed by
the latter person under his or its own name and that the identity of the contributing persons
will not be indicated.

SECTION 9(4) provides that in respect of an audiovisual work, the copyright owner is the
producer, unless the contract provides otherwise.

SECTION 2 provides that a producer means the person who undertakes the initiative and
responsibility for making of the audiovisual work.

AudioVisual work is described as work that consists of a series of related images which
impart the impression of motion, with or without accompanying sounds, susceptible to being
made visible, and where accompanied by sounds, susceptible to being made audible.

WORKS DONE DURING SCOPE OF EMPLOYMENT

Where an employment relationship exists, the work must be created within the scope of
employment for the employer to be considered the copyright owner. The court usually
broadens the scope of employment. e.g, an employee creating a piece of work on their home
computer after hours may be taken to have done so during the scope of employment for as
long as the work created is closely related to the day to day work he is employed for.
 C. ACTS OF INFRINGMENT

Section 7 of the CR&NR Act provides an extensive list of the acts that infringe on the rights
of the copyright holder. This list is applicable to both Dramatic works as well as Musical
works, but adaptation in Dramatic works means conversion from a non-dramatic work to a
dramatic work or vice versa, and in Musical works it refers to the arrangement of
transcription of the work.

This section therefore provides that:

(1) Subject to the provisions of sections 13 and 21, the author or other owner of copyright
shall have the exclusive right to carry out or to authorize the following acts in relation to the
work:

(a) reproduction of the work;

[S2 CR&NR ACT: "reproduction" means the making of one or more copies of a work or
sound recording in any material form, including any permanent or temporary storage of the
work or sound recording in electronic form]

REPRODUCTION CASES

LB PLASTICS Ltd v SWISH PRODUCTS

SOLAR THOMSON ENGINEERING v BARTON

DORLING v HONNOR MARINE

(b) translation of the work;

(c) adaptation, arrangement or other transformation of the work;

[S2 CR&NR "adaptation" includes, in relation to a: musical work, an arrangement or
transcription of the work]
(d) the first public distribution of the original and each copy of the works by
sale, rental or otherwise;
[S2 CR&NR "rental" means the transfer of the possession of the original or a copy of a
work or sound recording for a limited period of time for profit-making purpose]
(e) rental or public lending of the original or a copy of an audiovisual work, a
work embodied in a sound recording, a computer, a data base or a musical
 work in the form of notation, irrespective of the ownership of the original
or copy concerned;

[S2 CR &NR ACT "public lending" means the transfer of the possession of the original or
a copy of a work or a sound recording for a limited period of time for non-profit making
purposes, by an institution, the services of which are available to the public, such as a public
library or archive]

[ S2 CR &NR ACT "audiovisual work" means a work that consists of a series of related
images which impart the impression of motion, with or without accompanying sounds,
susceptible to being made visible, and where accompanied by sounds, susceptible to being
made audible]

[S2 CR &NR ACT "sound recording" means any exclusively aural fixation of the sounds
of a performance or of other sounds, regardless of the method by which the sounds are fixed
or the medium in which the sounds are embodied; excluding a fixation of sounds and images,
such as the sound track of an audiovisual work]

[S2 CR &NR computer" means an electronic or similar device having information

processing capabilities]

[S2 CR &NR ACT "musical work" means a work consisting of music, exclusive of any
words or action intended to be sung, spoken or performed with the music]

(f) importation of copies of the work, even where the imported copies were

made with the authorization of the author or other owner of copyright;

(g) public display of the original or a copy of the work;

"public display" means the showing of the original or a copy of the work-

(i) directly;

(ii) by means of a film, slide, television image or otherwise on screen;

(iii) by means of any other device or process; or,

(iv) in the case of an audiovisual work, the showing of individual images non-

sequentially,

at a place or places where persons outside the normal circle of a family and its closest

social acquaintance are or can be present, irrespective of whether they are or can be present at
the same place and time or at different places and times or at differ ent places or times, and

where the work can be displayed without communication to the public;

(h) public performance of the work;

"public performance" means in the case of-

(i) a work other than an audiovisual work, the recitation, playing, dancing, acting or

otherwise performing the work, either directly or by means of any device or process;

(ii) of an audiovisual work, the showing of images in sequence and the making of

accompanying sounds audible; and

(iii) a sound recording, making the recording sounds audible,

at a place or at places where persons outside the normal circle of the family and its

closest acquaintance are or can be present, irrespective of whether they are or can be present

at the same place and time, or at different places and times, or different places or times, and

where the performance can be perceived without the need for communication to the public;

(i) broadcasting of the work;

"broadcasting" means the communication of a work, a performance or a sound recording

to the public by wireless transmission, including transmission by satellite;

(j) other communication to the public of the work.

"communication to the public" means the transmission by wire or without wire of the

images or sounds, or both, of a work, a performance, a sound recording or a broadcast in such

a way that the images or sounds can be perceived by persons outside the norma l circle of a

family and its closest social acquaintance at a place or places so distant from the place where

the transmission originates that, without the transmission, the images or sound would not be
perceivable and, further, irrespective of whether the persons can receive the images or sounds

at the same place and time, or at different places or times individually chosen by them;

(2) The rights of rental and lending under paragraph (e) do not apply to rental or lending
of computer programmes where the program itself is not the essential object of the rental or
lending.

D. CASE

TATE V THOMAS [1921] 1 Ch 503

There plaintiffs brought an action for an injunction against the defendant to restrain the
infringement of their Copyright in a play entitled The Lads of the Village.

Facts

An agreement arose between the Plaintiffs and one J. Petersen, which required of the
plaintiffs to compose music and write lyrics for a play entitled The Lads of the Village,
in exchange for consideration. It was agreed that in addition to such consideration, the
names of the Plaintiffs would appear on all printed media and on all publications as
authors and composers of the play. Additionally, the agreement expressed in explicit
terms, that should J. Petersen default on paying such agreed upon consideration, the
performing rights would revert to the author and composers of the play.

On the 2nd of February 1918, J. Petersen, now claiming authorship of the play,
subsequently entered into an agreement with the 2 nd Defendant, which agreement entailed
the assignment of all of Petersens rights in the revue to the 2 nd defendant for 250l. In light
of this agreement, the 2nd Defendant Company gave licence to the 1st Defendant Thomas,
to produce a film of the play in consideration for royalty. In view of this licence, the 1 st
Defendant produced the play and it is that production which found itself the subject
matter of the action for an injunction.

Issues:

1. Whether J. Petersen had any interest in the Copyright either as an author or co-
author of the revue in question?
 2. Whether the agreement between J. Petersen and the 2 nd defendant constitutes a
legitimate assignment in equity and if so, of what rights?

Issue 1:

It was argued by the defendants that Petersens contributions in the composition of the revue
qualified him as an author of the revue, or at the very least, a co author. The outcome of this
argument, if accurate, thwarts the allegation of a Copyright infringement by virtue of the fact
that the defendants would find themselves in possession of authorship rights arising out of the
consignment that occurs between Petersen and themselves.

Conceding that Petersens contributions were limited to coming up with the name of the play,
creating the names of the characters, communicating the sketch of the plot to the Plaintiffs,
arranging the scenic effects, and preparing certain key lines of dialogue, the defendants
argued that his authorship was on account of the following:

1. That considering the fact that the dialogue in the revue was of a transient, ephemeral
nature and was of little consequence in comparison to the scenery and action, the real
author ought to be determined by identifying the man who staged the revue.
2. That the infringement complained of was in relation to the reproduction of the drama
in the cinema of which J. Petersen was the author.

In disposing of the arguments presented in favour of Petersens authorship, the court took the
position that Petersens contribution to the revue was negligible and that the sum total of his
contribution did not amount to anything entitling him to protection under the Act. Moreover,
the court conveyed that in order for something to enjoy Copyright protection under the Act,
the subject matter ought to be capable of being printed and or published. It was held that
although scenic effects can be protected as part and parcel of a drama, they themselves cannot
be the subject matter of protection.

Where one person has commissioned others to work, to infer that the collective Copyright
rests in the person commissioning the work is wrong

Issue 2:
The basic principle with equitable assignments is that the consigner can only consign to the
consignee, rights that the consigner holds at the time of assignment. Having established that
J. Petersen held no rights as an author or co-author in The Lads of the Village, it follows
that he could not pass any such rights to the Defendants. The only rights that were transferred
between Petersen and the Defendants were those that Petersen held, being the rights to
reproduce the play for consideration.

Ruling:

Held- that in as much as Petersens contribution to the production of the play was not the
subject matter of Copyright under the Copyright Act, 1911, he could neither be the sole
author nor one of the joint authors of the play as a collective work within the meaning of that
Act, and had no interest in the Copyright of that play.

Held- further that the agreement of April 17, 1917, did not amount to an equitable assignment
of the Copyright to Petersen who had only the qualified right to produce the play on the
stage; and the plaintiffs were entitled to the injunction claimed and an inquiry as to damages.