User:Online reproduction/sandbox

= online and offline reproduction of artistic works =

what is an artwork?
Artistic works fall under the scope and definition of Intellectual Property, “Intellectual Property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce”. Examples of such works are set out in Section 1(1) of the Copyright Act 98 of 1979 as, paintings, sculptures, drawings, engravings, photographs, works of architecture, being either buildings or models of buildings, including works of craftsmanship that have not been mentioned. So, in essence works that are a product of someone’s skill in a particular craft fall under the scope of artistic works.

We have two types of artistic works, online artistic works; these are digital artworks and offline artworks which are the contrast of online artistic works. The development of more digitalized artistic works and other digital works that fall under the scope of Intellectual Property, brought about the need to add more protection of these works. This was due to the need to prevent exploitation of author’s works in the digital world, for example making multiple copies of someone’s painting and benefiting off it. The Copyright Act 98 of 1979 brings about this protection, regardless of the quality of the work. Copyright ensures that a copyright holder protects himself/herself from other people benefiting from their work.

To ensure the copyright owner control of the reproduction of their work by other people, they are given an exclusive right given by provisions of the Copyright Act. And under this act, no one other than the copyright holder can make reproduction of a certain artistic work. Copyright regarding artistic work gives the holder of the copyright the power to oversee the reproduction of the work in any manner, offline or online, and whether in 3D/2D. Anyone who reproduces someone else’s artistic work commits copyright infringement. Infringement occurs when certain provisions of the Copyright Act are breached.

reproduction of artistic works online
Reproduction means making copies of a protected work in the form of a book for example, a publisher printing a manuscript into a book that is then distributed and sold to the public, audio books, CD books, manufacturing and distributing CDs or MP3/MP4 files containing recorded performances of musical works, copying and pasting text, downloading and uploading a file containing a protected work to the internet, streaming, linking, etc. When it comes to artistic works, Section 14(c)(i) of the Act grants the copyright owner the right to reproduce the work in any material form, but not the right to store the work in any medium via technological means. 2 This gap was filled by the Copyright (Amendment) Act of 2012, which also added storage of works in the right of reproduction for artistic works. The right to show a two-dimensional work in three dimensions or a three-dimensional work in two dimensions is expanded in the case of creative works.

The owner's original works are protected by copyright. Therefore, Section 14 of the Copyright Act of 1957 states that it is legal to reproduce the creative works of copyright holders in any medium, including the Internet. The author's exclusive right to reproduction, which includes "to reproduce the work in any material form, including the storage of it in any media by electronic means," is one of the significant copyright implications of the transmission and use of works on the Internet. According to Section 14 of the Copyright Act of 1957, copyright is an exclusive right, subject to the Act's limitations, to do or authorize the performance of the actions listed in the section in question with respect to a work or any significant portion of it. According to Section 14 of the Act, "the exclusive rights resulting from such ownership" are provided. In Ladbroke (Football) Ltd. v. William Hill (Football) Ltd the court held that copyright gives the exclusive right to do certain things including “reproducing the work in any material form”, and reproduction includes reproduction of a substantial part of the work.

reproduction of artistic works specifically paintings
Paintings are protected by copyright in South Africa, in terms of the Copyright Act. Paintings are expressly listed as a form of artistic work in s1(iii) of the Act. The Copyright Act reserves exclusively for the owner of the copyright, various acts or dealings with the intention of rewarding the expression of creativity and embodiment of skill and effort. In the case of artistic works, these reserved acts include reproducing the work in any manner or form, publishing the work, including it in a film or television broadcast and making an adaptation thereof. Therefore, only the owner of the copyright in a painting may make a copy of it. Section 1(c) of the Act provides that artistic work also includes a transformation of the work in such a manner that the original or substantial features thereof remain recognizable. Thus the making of a reproduction (or adaptation) in any manner or form(including taking a picture and publishing the picture of a painting), which is done without the owner’s authorisation, amounts to copyright infringement.

In the case of paintings, the artist generally automatically becomes the first owner of the copyright, unless one of very specific exceptions listed in the Act applies. In order for copyright to transfer, an agreement to this effect needs to be concluded. Copyright does not transfer with the physical object but remains with the artist unless or until he or she agrees in writing that the ownership of the copyright should transfer. Therefore, when one buys a painting, they only buy and acquire the physical object. They do not acquire copyrights as well and thus may not do any of the acts reserved for the owner, including making copies. They would require the copyright owner’s permission to do so

reproduction of artistic works specifically photographs
photographs are listed as an artistic work in section 1 of the Act. photographs are defined as a "a picture made using a camera, in which an image is focused on to light-sensitive material and then made visible and permanent by chemical treatment, or stored digitally" it should be stated that this does not include any cinematograph. photographs are also offered copyright protection under the act. The problem with photographs is that they are produced mechanically which does not require a person to use their Intelligence. we have to look at the originality and what it means to reproduce a photograph as this two pose a problem. for the photo to be considered original "in relation to a photograph, means the person who is responsible for the composition of the photograph but where a person 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, that person is the first owner of its copyright" copyright will be infringed should anyone except the owner exercises rights which belong to the copyright owner. The important exclusive rights attaching to artistic works like photographs are the right of reproducing the work in any manner or form and the right of making an adaptation of the work. should a person want to reproduce this type of artistic work then permission will be required from the owner of the work.

fair dealing as an exception
section 12 of the Copyright Act is an exemption which deals with fair dealing or fair use which is an act which allows a person who wants to use protected works which contain a copyright, which in this instance an artistic work. The act lists three exception which will be considered as fair use, this are the exception listed: the first act which will be considered as fair use is when a user is using the artistic work for research, private use or personal use. The second act considered as fair use is when the user uses the work as a way to review or criticize the contents contained in the artistic work. The third and final act is when the artistic work is used to report news in a magazine or newspaper or through cinematograph or broadcast. Should the person using the artistic works in the mentioned ways then the user will not need to ask for permission from the copyright owner of the artistic work or pay a fee to use the work. The main problem with section 12 is that it does specify how much of a user can copy but it is made clear that it has to be for the users own use therefore multiple reproductions of the artistic work would fall outside of the fair dealing and section 12 would not apply resulting in a copyright infringement.

incidental use as an exception
Every original work is the outcome of efforts taken by the author, and any person who, without the written consent of the owner of the copyright or of the legal representative of the owner, knowingly performs or causes to be performed in public and for private profit the whole or any part, constitute an infringement on any artistic work. An ‘artistic work’ as envisaged in the Copyright Act 98 of 1978 (referred herein as the Act) can relate to a number of works, such as a painting, etc. Section 15(1) of the Act states that “the copyright in an artistic work shall not be infringed by its inclusion in a cinematograph film or a television broadcast or transmission in a diffusion service, if such inclusion is merely by way of background, or incidental, to the principal matters represented in the film, broadcast or transmission”. This right is limited to the capture of an ‘artistic work’ in certain other works.

Section 1 of the Act defines ‘artistic work’ narrowly, as including “(a) paintings, sculptures, drawings, engravings and photographs; (b) works of architecture, being either buildings or models of buildings; or (c) works of craftsmanship …”. Thus, the incidental use right would permit the filming of a building or sculpture in the background of a scene. But the definition in section 1 excludes music, film or broadcast footage, as well as literary texts. It would not authorize the capture of music playing on a radio, a programme playing on a television set, or even the capture of a literary text such as an open book, because these works are not defined as an ‘artistic work.’ This right only applies if the captured work is “by way of background, or incidental, to the principal matters represented.” It thus would appear to permit the capture of works in the background of a film, but not the direct filming of works in public places.

exceptions on the general principle which states that the author of a work is the first owner of any copyright there in
Section 21 of the Copyright Act  provides for instances where in which the author of a work may not be the owner of the copyright there in.Works intended for publication. This refers to whereby an artistic work is made by the author in the course of  employment by the proprietors of a newspaper or magazine under a contract of service and this work has been created for the purpose of publication. The proprietor will be the owner of the  work, as long as the copyright relates to reproduction of the work in any newspaper, magazine or similar periodical. This exception applies mainly in the creation of work in the media space, particularly, that is meant for publication. The  second  instance relates to a case whereby the author of the work creates or establishes the work in the course of employment. This means although he authors the work, he however does not necessarily facilitate the work. The third instance relates to specific works created for payment. This refers  to work that was created by a person  under a  commission or instruction that has been issued by another and there was an establishment of an agreement for a payment in exchange of the work. The party to the agreement and that instructs the creation of the work will then become the owner of the work instead of the author there in.The fourth instance relates to work created by the state and international organisation. This refers to all work that has been created by the state or international organisations or a work that has been created under the control or instruction of  a state or international organisationThe fifth instances is a case in which parties can simply have an agreement on how copyrights of a work may vest between themselves. Parties have the liberty to engage and overrule the operation of an exception.