Firstly the lecturer may in terms of Regulation 8 of the Copyright Regulation and subject to the provision of regulations 2, duplicate a single copy by or for himself/herself, at his/her request, for research, teaching or preparation for teaching in class.

“At the end of the term, therefore, students in a class may have received from their lecturer no more than: copies of 9 poems, articles, stories or essays by 9 different authors or copies of 18 excerpts from the works of 9 different authors (2 excerpts per author) or copies of 27 poems, articles, stories or essays from 9 different collective works or periodical volumes with the provision that all of the 27 works must have been written ”by different authors" - (Ref.: DALRO's document entitled "Reprographic Reproduction of Copyright Material for Educational Purposes" - Pg. 5)

Section 23 (1) of the Copyright Act provides that copyright shall be infringed by any person, not being the owner of the copyright, who, without the license of such owner, does or causes any other person to do, in the Republic, any act which the owner has the exclusive right to do or to authorise.

The focus is on “does or causes any other person to do”. The Act can be interpreted to oblige a lecturer to stop a student from duplicating a textbook and such lecturer should also not allow a student to make use of the duplicated textbook in class.

The application for admission and the registration document signed by a student, assisted by a parent or guardian if the student is a minor, at the Tshwane University of Technology is in essence a contract between the student and the institution.

The incedentalia of the registration document/application form determines that the student will be admitted to the institution subject to the student consenting to the rules and regulations of the institution.

In the application form, clause 8 of the Memorandum of Agreement states that the student “hereby cede and transfer to the University all rights and title in any intellectual property created by me during my course of study or in any research project I undertake at the University, unless otherwise agreed”

The rules and regulations of Tshwane University of Technology, which is available to a student in a published edition, confirms the position in Chapter 10 clause 10 that copyright will be transferred to the institution with respect to Master’s and Doctorate thesis and dissertations.

Intellectual property consists of various rights that an individual may have and includes copyright, trademarks, patents etc.

In order to come to the conclusion the first aspect that must be examined is whether the assignment of the copyright in terms of the registration document/contract is a legal binding document. Section 22 of the Copyright Act provides in sub-section 1, that “copyright shall be transmissible as moveable property by assignment….” and in sub-section 3 the Act stipulates that such assignment shall only have effect if it is reduced to writing and signed by the assignor/student.

Sub-Section 5, provides that the assignment may be on existing works or for future works.

Therefore, it is clear that the assignment of copyright by the student via the registration document/application form will constitute a legal binding document.

The second aspect refers to what types of works can be assigned by the student. For the purposes of this research it will include all works that was or will be created by such student for the purpose of his/her studies at the institution.

Note that the stipulation of the application form and rules and regulations refers to works that will be created during his/her studies, and therefore only works created during the studies will be applicable. Such works will include amongst others, tests, assignments, presentations, papers etc.

The position might however change if a student, after graduation, creates a text book based on research the student conducted during his/her studies.

If all the requirements for existence of copyright are complied with and the text book is not a mere replica of the research and complies with fair dealing, then author will retain copyright on such a text book.

The second part of the question refers to employees and the works created by them. Section 21(d) provides that in the instance where works are created by an employee under an employment agreement, copyright in those works will vest in the employer.

At the Tshwane University of Technology, the employer added the following in the employment agreement: “Ownership of copyright on any work compiled or produced by a staff member while in the employment of the University, rests with the University in accordance with the stipulations of section 21 of the Copyright Act, 1978 (Act 98 of 1978) as amended.” It is important to note that the focus is on works created under employment agreement.

Therefore if a lecturer, in terms of his employment agreement, is expected to author certain works i.e. class notes, exam papers etc, the copyright in such works will reside with the employer.

If such employee however creates another work i.e. writes a novel which does not fall under the ambit of his/her employment agreement, the employee will retain copyright in such a work.

Therefore in terms of Section 21(d) the Act indicates the ownership, and further in terms of the discussion of the student agreement, it is clear that the principles are mutatis mutandis and therefore the employment agreement will be a legally binding agreement for the assignment of copyright.

Another aspect of this question pertains to what types of works will qualify for this assignment. The simple answer will be all works that is created under the employment agreement, therefore everything created by such staff member in order to fulfill his employment agreement.

However what is the situation if a staff member creates a work which does not fall under his employment agreement?

The answer can be found in Section 3 of the Act, and in short will mean that such work will be owned by that employee.

It is advisable that institutions incorporate an Intellectual Property Policy, such as the Tshwane University of Technology did, where it is stipulated in clause 1.7.24, in addition to the stipulations of Section 21(d) and the employment agreement, that works created by an employee making substantial use of the University’s resources, such work will fall under the ownership of the institution.

Substantial use is defined in the policy under clause 2.12 as the “use of any University-paid time or funding, or the use of facilities, equipment, staff assistance, and/or substantial administrative support that exceeds nominal use, as defined above, including the use of dedicated laboratories, dedicated computer centres and dedicated equipment.”

Artistic works is defined by the Act to include photographs, and therefore the use of Section 15.

With respect to illustrations for teaching, Section 12(4) refers that the duplication must be done in order to constitute “fair practice”.

The question therefore will be, ‘does the duplication of photographs for 10 files constitute fair practice?’

Because of the quantity that must be duplicated, it will not constitute fair practice and therefore Section 12(4) will also not be applicable.

Therefore permission from the author of the photograph must be obtained to duplicate the photographs at an agreed royalty. In addition, if such permission is obtained, it will only be applicable for that quantity of duplication for that specific year.

If the department wishes to make use of the files, containing the photographs, for the following year, they will have to apply again for permission from the author because a reprographic license is only valid for one year.

Yes. The Act stipulates that if the duplication does not conform to fair dealing, permission needs to be obtained for the duplication.

It is however submitted that with respect to Section 13 of the Act and Regulation 2 of the Copyright regulations with respect to class room use, and taking all factors into consideration as provided for the duplication may be done without the permission from the author or publisher

The question has two aspects, first of all, what does the Act provide for with respect to duplication of cinematograph films, and secondly, is a library authorised to reproduce the video?

The Act does not provide for the above scenario, and therefore the transfer of the cinematograph film from video to DVD will not be authorised. Thus, permission will have to be obtained from the author or the appropriate DVD will have to be bought.

The second part of the question refers to Regulation 3 of the Copyright Regulations, which refers to the reproductions made by a library or archive depot.

A library is in terms of the Act and Regulations cannot reproduce a work for the scenario as provided for above

There is a perception that a work on the World Wide Web is in public domain and because it is in public domain it may therefore be freely copied or duplicated.

This assumption is however not correct because any work created within the ambit of the Copyright Act, automatically receives the protection from the Act. Further, because a work is in the public domain does not mean that the work may be used as desired.

The applicability of public domain resides primarily within other intellectual property rights for instance Trademarks and Patents, and for the purposes of this research public domain is not applicable.

Therefore, if a work in terms of Section 2 of the Copyright Act is available on the World Wide Web, the same principles must be adhered to in terms of Section 12 and other Sections pertaining to the use of such work.

In addition, permission may be obtained from the work if the duplication required is more than permitted by the Act.

With relation to the term backup, the only backup that may be made in terms of the Act is applicable to computer programmes. Section 12 of the Act is applicable under musical works. It will depend on what the “backup” CD is used for.

If the musical CD is for instance purely copied for the purpose to have an extra copy for instance to play at work or in your car and the original is left at home, or if the duplication is in order not to purchase the original musical CD, then the duplication will not be authorised.

If the copyright of such paper vest in the institution, as a result of employment or study, then the institution must provide permission for such publication.

If the author of the papers is not under the application of Section 21, or the copyright policy determines otherwise, he/she can do with such papers as he/she deems fit.

The Creative Commons Creative Commons is a Massachusetts-chartered 501(c) (3) tax-exempt charitable corporation.

It enables copyright holders to assign certain of their rights while retaining others. In essence, an author may publish his/her work with a license agreement whereby it is stated on which work “no rights are reserved” or “some rights reserved”.

The purpose of Creative Commons is to avoid the problems experienced under copyright legislation. (https://www.creativecommons.org)

The decision in Hawkes & Son (London) Ltd v Paramount Services 1934 Ch 593 forbids a student to duplicate works on behalf of another student.

It is assumed that the application will therefore also be applicable to lecturers duplicating on behalf of a student, except with respect to classroom.

Therefore the lecturer may refer the students to an article, where after each student may duplicate such material in terms of Section 12.

DALRO is the Dramatic, Artistic and Literary Rights Organisation. DALRO administers aspects of copyright on behalf of authors and publishers.

They have agreements with foreign societies, authors and publishers which enable them to represent authors and publishers.

 They do not have a right of reproduction but provide permission on behalf of an author or publisher for the duplication of material.

Even though a book is out of print the same principles of the Copyright Act are applicable.

Permission has to be obtained from the author and/or publisher before such out of print books may be duplicated.

The principles of Section 12 and fair dealing are also applicable for the quantity of the book that may be duplicated

Illustrations for teaching is authorised if: it is to the extent justified by the purpose, by way of illustration for teaching, the use is compatible with fair practice and the source of the material, as well as the name of the author, if it appears on the work, is referred to.

A cartoon will fall under the ambit of an artistic work as defined in the Act, and the application of Section 15 of the Act will be applicable.

In accordance with Section 15 the mere duplication of such cartoon will constitute an infringement. Permission will therefore have to be obtained in order to reproduce such work.

Permission has to be obtained from the author or the publisher. Take note that the author might have retained his/her copyright in the literature work and the publisher has the copyright in the published edition.

Alternatively entities that represent various artists, authors and publishers, may be contacted to obtain such permission.

If the newspaper article has not been expressly reserved by the copyright owner, the source has clearly mentioned the name of the author, the use in question is compatible with fair practice and then it will not constitute an infringement.

If all of these conditions have been adhered to, then clearance does not have to be obtained.