Wednesday 5 March 2014

Caroline B Ncube

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".
(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.
(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.

Caroline B Ncube

Caroline B Ncube

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Write comments
11 March 2014 at 10:56 delete

Part 5

1. The obvious issue is that regardless of any finding of in respect of the copyright infringement the news organizations, by making available and communicating Dr Burger’s image to the public have breached the court orders in respect of not publishing the image (in any medium) of the witnesses (here Dr Burger)

2. Regardless of who owned the copyright in the photograph………..were the news organizations to step outside of the scope of the exceptions, there would need to need to be an agreement concerning the use of subject matter embedded in the photograph, Dr Burger’s image, with the owner of Dr Burger’s image – presumably Dr Burger, not just the owner of the photograph (presumably University of Pretoria) . In other words if the University of Pretoria owned the copyright in the photograph and Beeld have use of the photograph under fair dealing provisions of the Copyright Act, the Beeld would still need to enter into agreement for any use beyond the exceptions, with the owner of Dr Burger’s image (again presuming Michelle Burger) and also with University of Pretoria as the copyright owner in the photograph

Please can you post this response

Graeme Gilfillan


11 March 2014 at 10:57 delete

Part 4

Point 4 above regarding exceptions narrows the use by any third party of the artistic work (and it must said cinematographic work containing the still which was broadcast), regardless how made available or communicated to the public (broadcast or reproduced respectively) “Provided that, in the case of paragraphs (b) and (c) (i), the source shall be mentioned, as well as the name of the author if it appears on the work”

If the Beeld and eNCA complied with “Provided that, in the case of paragraphs (b) and (c) (i), the source shall be mentioned, as well as the name of the author if it appears on the work” then there would be no copyright infringement
Notwithstanding the above two issues are worth noting

11 March 2014 at 10:59 delete

Part 2

1. Country whether the artistic work and the creator of the work (the photographer) qualifies for copyright protection (the Berne Convention) – in South Africa the work does

2. Originality whether copyright subsists – is the artistic work original? – was skill, labour and judgement applied and whether it is a copy of an existing work? – copyright does subsist and there is no argument to
the contrary raised

3. Term whether the work remains in copyright (the 50 year rule) – it does

11 March 2014 at 11:00 delete

Part 1

Very interesting that a Leo has picked up on this

Some omissions by the writer – not sure if deliberate (to assist her argument) or missed (knowledge) or some other reason.

Whilst Section 7 addresses only the nature of artistic works – it does not provide the complete picture in respect of SA Copyright Law and artistic works

Application of the Scootier test (for copyright infringement) confirms omission of comment on the following – all of which mitigate against copyright infringement and suggest the hypothesis and remedies proposed by the writer as being incorrect:

11 March 2014 at 11:02 delete

Part 3

4. Exceptions whether Ch 1 Sec 15 (4) read with Ch 1 Sec 12 (1) (c) have application – such do.
“(4) The provisions of section 12 (1), (2), (4), (5), (9), (10), (12) and (13) shall mutatis mutandis, in so far as they can be applied, apply with reference to artistic works”


“12. (1) Copyright shall not be infringed by any fair dealing with a literary or musical work—
(c) for the purpose of reporting current events—
(i) in a newspaper, magazine or similar periodical; or
(ii) by means of broadcasting or in a cinematograph film:
Provided that, in the case of paragraphs (b) and (c) (i), the source shall be mentioned, as well as the name of the author if it appears on the work”

11 March 2014 at 13:00 delete This comment has been removed by the author.
11 March 2014 at 13:17 delete

Hi Graeme
Thanks for your comments, with which I am in agreement. The fair dealing for purposes of reporting current events exception is relevant. However, in my view it would only be applicable if the media complied with the proviso to the section. That is, mentioning the source of the work and the name of the author if it appears on the work. Neither eNCA nor the Beeld expressly stated that the source of the photograph was UP's website. There were some vague references to having sourced it from Dr Burger's (unnamed) employer's website. That does not strike me as being sufficient or adequate reference to a source.
The author of the photograph is not named on UP's website, so it could not be expected of the media to name this person.
I agree with you that if the use exceeded fair dealing, that an agreement (license) should have been entered into between the media and the copyright holder.