RSA: Copyright infringement and witness images in the Oscar Pistorius trial

Leo with IP glasses on
source: (C) starstyle

Most of the world has its eyes on South Africa as the country's first televised criminal trial unfolds.  This Leo, like many around her, was watching, but with her intellectual property (IP) glasses on. One of the major conditions on the television broadcast of the trial is that where a witness states that s/he does not want his/her image to be shown on TV, that must be respected and only an audio of the testimony is permitted to be broadcast. See here for the court ruling permitting the video and audio recording and broadcasting of the trial ('the first court order').



All three state witnesses who gave their testimony in the first two days of the trial asserted this right and only an audio version of their testimony was permitted to be broadcast. However, there was high drama yesterday when a local channel, eNCA, broadcast a still image of the first state witness, Dr Michelle Burger, simultaneously with an audio broadcast of her testimony. This image was not taken from inside the court but was sourced from Dr Burger's employer, the University of Pretoria's website. A local newspaper, the Beeld had also printed a picture of Dr Burger on the front page of yesterday's paper. The prosecutor, Mr Gerrie Nel, alerted the court to the broadcast of the image and court was adjourned for a few minutes whilst the judge considered this development and upon resumption of the proceedings, the court ordered that where a witness [like Dr Burger] did not wish to have images of his/her testimony to be broadcast, no other images of that witnesses, from whatever source, were to be published by the print and TV media ('the second court order', see media report here). Thereafter eNCA apologised for what it called a misunderstanding of the first court order (see eNCA website here).  Much of the commentary so far has been on whether eNCA and the Beeld had in fact breached the first court order. This post looks at whether a claim for copyright infringement can be made against them.

Copyright Infringement
There is clearly a copyright infringement claim to be made by the holder of copyright in the picture of Dr Burger against the newspaper and TV channel that published or broadcast the picture without authorisation.

Photographs are protected as artistic works by the South African Copyright Act, 98 of 1978. Section 7 of the Act provides that only the copyright holder, or a person authorised by the copyright holder can do any of the following in South Africa:
(a) Reproduce the work in any manner or form; [the photograph was reproduced by both the newspaper and TV channel]
(b) publish the work if it was hitherto unpublished;
(c) include the work in a cinematograph film or a television broadcast; [the photograph was broadcast by the TV channel]
(d) cause a television or other programme, which includes the work, to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the work, and is operated by the original broadcaster;
(e) make an adaptation of the work;
( f ) do, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (d) inclusive.

Section 23 of the Act says that copyright infringement occurs when "any person, not being the owner of the copyright, who, without the licence of such owner, does or causes any other person to do, in the Republic, any act which the owner has the exclusive rights to do or to authorise". It appears evident that no permission or authorisation was given by the copyright holder to the newspaper or TV channel to reproduce or broadcast the picture. Therefore there was infringement. This raises the question of who the copyright holder is. It could be:

(a)  the photographer, as the author or creator of the artistic work.
Section 21(1) (a) provides that "Subject to the provisions of this section, the ownership of any copyright ... on any work shall vest in the author or, in the case of a work of joint authorship, in the co-authors of the work".
                           or
(b) Dr Burger if she commissioned the work
Where an author or creator is commissioned to create a work, the commissioner holds copyright. Section 21(1)(c) provides that "Where a person [Dr Burger] commissions the taking of a photograph...and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, such person [Dr Burger] shall, subject to the provisions of paragraph (b), be the owner of any copyright subsisting therein"
Alternatively, Dr Burger's employer could have commissioned the photograph for its website, in which case, it would be the copyright holder.
                          or
(c) Dr Burger's employer, the owner of the website on which the picture was taken from if copyright was assigned to it, at the time the photograph was submitted for publication on the website.
Under section 22 of the Act, a copyright holder [Dr Burger or the photographer] can assign copyright to a third party [Dr Burger's employer] who/which would then hold all the exclusive economic rights in the work.
It is possible that Dr Burger's employer has taken assignment of the copyright in the photograph because it asserts copyright in most of its webpages and has the following notice affixed to the foot of its webpages:
"Copyright © University of Pretoria [year]. All rights reserved".

So the copyright holder [which ever of the above it is] can sue for remedies for infringement which include "damages [or a reasonable royalty], interdict, delivery of infringing copies or plates used or intended to be used for infringing copies" (section 24(1) of the Act).
There is no telling whether a copyright infringement claim will be brought in this matter, but as shown above, there is a strong case for infringement.