8 Member jury verdict on 10 March 2015:
Robin Thicke
and song producerPharrell Williams
are liable for copyright infringement as they infringed with theirsong
“Blurred Lines”
copyright in the 1977Marvin Gaye song
“Got to give it up”
and awarded Gaye’s family US$ 7.4 million in damages.
William’s/Thicke a*orneys have filed paperwork with the court referring to the jury verdict as “inconsistent”. They plan to file a
mo@on for a new trial
in coming weeks.Spokesperson for Williams:
“While we respect the judicial process, we are extremely disappointed in the ruling made today, which sets a horrible
precedent for music and creaVvity going forward. Pharrell created ‘Blurred Lines’ from his heart, mind and soul and the song was not taken from anyone or anywhere else. We are reviewing the decision,
considering our opVons and you will hear more from us soon about this ma*er.”
Gaye family has filed a moVon for an
injunc@on against the
ongoing sale
of “Blurred Lines.”
Seminar 6:
The Rights to distribute, perform, and
display
Overview
§ The rights to “distribute, perform, and display” § Moral rights
§ Parallel importaVon § ReDigi (case study)
Last week:
economic rights
2 key rights:
reproduc@on
right
This could easily be linked to the discussions of U.S.
copyright law because U.S. copyright law contains
It’s not quite so straight forward this week because
SA copyright law is structured differently
and
spells out
different rights
(although these could
probably be clustered together in a fashion similar to
Structure:
ss 6 – 11B list the applicable
economic rights
in relaVon to each of the
protected works under the Copyright Act (“
nature
(a) Reproducing the work in any manner or form;
(b)
publishing
the work if it was hitherto unpublished; (c)performing
the work in public;(d)
broadcas@ng
the work;(e) causing the work to be transmi*ed in a diffusion service, unless such service transmits a lawful broadcast, including the work, and is operated by the original broadcaster;
(f) making an adapta@on of the work;
(g) doing, in relaVon to an adaptaVon of the work, any of the acts specified in relaVon to the work in paragraphs (a) to (e) inclusive.
(a) Reproducing the work in any manner or form;
(b) publishing the work if it was hitherto unpublished;
(c) including the work in a cinematograph film or a television broadcast;
(d) causing the work to be transmi*ed in a diffusion service, unless such service transmits a lawful broadcast, including the work, and is operated by the original broadcaster;
(e) making an adapta@on of the work;
(f) doing, in relaVon to an adaptaVon of the work, any of the acts specified in relaVon to the work in paragraphs (a) to (d) inclusive.
(a) Reproducing the film in any manner or form, including making a sVll photograph therefrom;
(b) causing the film, in so far as it consists of images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;
(c) broadcas@ng the film;
(d) causing the film to be transmiQed in a diffusion service, unless such service transmits a lawful television broadcast, including the film, and is operated by the original broadcaster;
(e) making an adapta@on of the film;
(f) doing, in relaVon to an adaptaVon of the film, any of the acts specified in relaVon to the film in paragraphs (a) to (d) inclusive; (g) lehng, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the film.
(a) Making, directly or indirectly, a record embodying the sound recording;
(b) leUng, or offering or exposing for hire by way of trade, directly or indirectly, a reproducVon of the sound recording; (c) broadcas@ng the sound recording;
(d) causing the sound recording to be transmi*ed in a diffusion service, unless that service transmits a lawful broadcast,
including the sound recording, and is operated by the original broadcaster;
(e) communica@ng the sound recording to the public.
(a) Reproducing, directly or indirectly, the broadcast in any
manner or form, including, in the case of a television broadcast, making a sVll photograph therefrom;
(b) rebroadcas@ng the broadcast;
(c) causing the broadcast to be transmi*ed in a diffusion service, unless such service is operated by the original broadcaster.
“to undertake, or to authorize, the direct or indirect distribuVon of such signals by any distributor to the general public or any
secVon thereof in the Republic, or from the Republic.”
“to make or to authorize the making of a reproducVon of the ediVon in any manner.”
(a) Reproducing a 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) broadcas@ng the computer program;
(e) causing the computer program to be transmi*ed 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 adapta@on of the computer program;
(g) doing, in relaVon to an adaptaVon of the computer program, any of the acts specified in relaVon to the computer program in paragraphs (a) to (e) inclusive;
(h) lehng, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the computer program.
Key definitions contained in the Act
• (ReproducVon (“includes” definiVon))
• (AdaptaVons (“includes” definiVon))
• Performance
• Broadcast
• DistribuVon in relaVon to a programme-‐carrying signal • Diffusion service
• PublicaVon (in s1(5))
Not:
Key definitions contained in the Act
Performance
“includes any mode of visual or acousVc presentaVon of a work, including any such presentaVon by the operaVon of a
loudspeaker, a radio, television or
diffusion receiver or by the exhibiVon of a cinematograph film or by the use of a record or by any other means, and in relaVon to lectures, speeches and
sermons, includes delivery thereof; and references to “perform” in relaVon to a work shall be construed accordingly: Provided that “performance” shall not include broadcasVng or rebroadcasVng or transmihng a work in a diffusion service;”
Broadcast
“when used as a noun, means a
telecommunicaVon service of transmissions consisVng of sounds, images, signs or signals which— (a) takes place by means of
electromagneVc waves of frequencies of lower than 3 000 GHz transmi*ed in space without an arVficial conductor; and (b) is intended for
recep@on by the public or sec@ons of the
public, and includes the emihng of
programme-‐carrying signals to a satellite, and, when used as a verb, shall be construed
accordingly;”
DistribuVon in relaVon to a programme-‐carrying signal
“any operaVon by which a distributor transmits a derived signal to the general public or any secVon thereof”
Key definitions contained in the Act
PublicaVon
(a) Subject to paragraph (e), a work shall be deemed to have been published if copies of such work have been issued to the public with the consent of the owner of the
copyright in the work in sufficient quan@@es to reasonably meet the needs of the public, having regard to the nature of the work.
(b) PublicaVon of a cinematograph film or sound recording is the sale, lehng, hire or offer for sale or hire, of copies thereof.
(c) [..]
(d) PublicaVon shall not include— (i) a performance of a musical or dramaVc work, cinematograph film or sound recording; (ii) a public delivery of a literary work; (iii) a transmission in a diffusion service; (iii) a broadcasVng of a work; (v) an exhibiVon of a work of art; (vi) a construcVon of a work of architecture.
(e) For the purposes of secVons 6, 7 and 11 (b), a work shall be deemed to be published if copies thereof have been issued to the public.
Key definitions contained in the Act
“Public”
Defined in SAMRO vs Svenmill Fabrics, 1983 (1) SA 608 (C) – from the copyright owner’s perspecVve, are the people concerned part of the potenVal market for the work in quesVon
Certain forms of
distribution
constitute
criminal offences
Sec@on 27(1):
Any person who at a Vme when copyright subsists in a work, without the authority of the owner of the copyright—
[…]
(e) distributes for purposes of trade; or
(f) distributes for any other purposes to such an extent that the owner of the
copyright is prejudicially affected, arVcles which he knows to be infringing copies of the work, shall be guilty of an offence.
Certain forms of
public performances
constitute a criminal offence
Sec@on 27(3)Any person who causes a literary or musical work to be performed in public knowing that copyright subsists in the work and that performance consVtutes an infringement of the copyright, shall be guilty of an offence.
And remember the addiVonal
performers’ rights
under the
Performers Protec@on Act
as
We deal with
copyright excep@ons and
Economic rights &
Moral rights
Sec@on 20 (closely derived from Art. 6 Berne):Notwithstanding the transfer of the copyright in a literary, musical or arFsFc work, in a cinematograph film or in a computer program, the author shall have the right to claim authorship of the work, subject to the provisions of this Act, and to object to any distor)on, mu)la)on or other modifica)on of the work where such ac)on is or would be prejudicial to the honour or reputa)on of the author: Provided that an author who authorizes the use of his work in a cinematograph film or a television broadcast or an author of a computer program or a work associated with a computer program may not prevent or object to modificaFons that are absolutely necessary on technical grounds or for the purpose of commercial exploitaFon of the work.
Moral rights
1. Right of paternity 2. Right of integrity
In South Africa, parallel importaVon consVtutes
copyright infringement if the requirements of
S23(2)(a): “copyright shall be infringed by any person who, without the licence of the owner of the copyright and at a Vme when copyright
subsists in a work-‐
(a) imports an arVcle into the Republic for a purpose other than for his private and domesVc use;
[…]
if to his knowledge the making of that arVcle consVtuted an infringement of that copyright or would have consVtuted such an
infringement if the arVcle had been made in the Republic.”
I.o.w., unless in cases of private use, courts in South Africa are essenVally required under the Act to
hypothesise the
making of the parallel imported ar@cle in
South Africa
and to determine whether such making would have consVtuted a copyright infringement.Frank & Hirsch (Pty) Ltd
Roopanand Brothers (Pty) Ltd. TDK Japan/SIngapore
Exclusive licence for distribuFon in SA – and later: assignment of SA copyright in
packaging
Supreme Court of SA
: 23(2)(a)(+); if TDK had produced the packaging in SA it would have infringed F&H’s copyrightCase Study: ReDigi
ReDigi CEO John Ossenmacher
Sour ce : h*p: // te ch lan d. Vm e. co m /2 01 3/ 04 /2 5/ re di gi -‐c eo -‐s ay s-‐ th e-‐ co ur t-‐ ju st-‐ sn atc he d-‐ aw ay -‐y ou r-‐ rig ht-‐ to -‐r es el l-‐w hat-‐ yo u-‐ le gal ly -‐o w n/Discussion: What do you think?
2012/2013
vs
1. Infringement of Capitol Record’s reproduc@on
right?
2. Infringement of Capitol Record’s distribu@on
right?
Judge Sullivan’s Ruling
Infringement of Capitol Record’s reproduc@on right,
even though only one file exists here before and auer
the transfer to ReDigi’s servers?
The court: The reproduc@on right is violated
whenever the sound recording is re-‐embodied
elsewhere other than the original loca@on (i.e.,
on the harddrive) where it was downloaded.
(“it is the crea@on of a new material object and
not an addi@onal material object that defines
the reproduc@on right”)
MM MM
Redigi
Infringement of Capitol Record’s
distribu@on
right?
“The
first-‐sale doctrine
creates abasic excep@on to the
copyright holder's
distribu@on
right
. Once the work islawfully sold or even transferred gratuitously, the copyright owner's interest in the material object in which the
copyrighted work is embodied is exhausted. The owner of the material object can then dispose of it as he sees fit. Thus, one
who buys a copy of a book is enVtled to resell it, rent it, give it away, or destroy it.”
First sale doctrine / exhaus@on of rights
(s109(a) 17 U.S.C.; not expressly in SA)
“
[T]he owner of a parVcular copy or phonorecord
lawfully made under this Vtle, or any person
authorized by such owner, is enVtled, without the
authority of the copyright owner, to sell or otherwise
dispose of the possession of that copy or
phonorecord.”
“
[T]he owner of a parVcular copy or phonorecord
lawfully made under this @tle
, or any person
authorized by such owner, is enVtled, without the
authority of the copyright owner, to sell or otherwise
dispose of the possession of that copy or
phonorecord.”
Direct infringement (+) – contributory
infringement (+) – vicarious
How could ReDigi redesign its system
to avoid liability?
ReDigi
ReDigi 2.0 Subscriber #1 iTunes Subscriber #2 $ $ Direct-‐to-‐cloud func@onality
Let’s assume this solves the
problem with reproducVons – is it
“fair” to apply the first sale
doctrine in these cases to jusVfy
the subsequent distribuVon?
Thank you for your attention and participation. Any questions?
