4.2 Analysis of the Copyright Act
4.2.2 The Exclusive Rights of Copyright Owners
4.2.2.2 The Right of Communication to the Public
4.2.2.2.1 Publication of the work
A copyright owner has the exclusive right in terms of the Copyright Act to publish the work or authorize the publication thereof in respect of literary, musical53} or artistic works532 and computer programs.533
A publication does not include performance of a musical or dramatic work, cinematographic film or sound recording, public delivery of a literary work, transmission in a diffusion service or the broadcasting of a work. 534 A work will be considered published if copies thereof have been issued to the public.535 Subject to the latter provision, a work will be considered published if copies thereof have been issued to the public, with the consent of the copyright owner, in sufficient quantities to reasonably meet the needs of the public.536
In terms of the above a person who, without the authority of the copyright owner, issues copies of the copyrighted work to the public will commit infringement of copyright by publication.537
The Copyright Act is in relation to literary and musical works framed in terms of print in analogue form.538
The traditional right of publication thus focuses on physical 'copies' of works that have been issued to the public.539 The question relating to the application of this right in the digital age is whether publication takes place when digital copies of the work are made available on the Internet? While this might, in terms of a literal application of the traditional right, amount to publication,540 it is submitted that the complication of the application of this right in the digital context would arise as a result of the nature of the Internet.
531Section 6(b).
532section 7(b).
533section IlB(b).
534section 1(5)(e).
535section 1(5)(d).
536section 1(5)(a).
537AJC Copeling (updated by AJ Smith) 'Infringement of Copyright' inLA WSA (2004) 5(2) 24 paragraph 26(b).
538 de Villiers (note 501 above) 49 where it is submitted that sections 6 and 7 apply to 'tangible media such as books ... '.
539LAWSA (note 537 above).
540de Villiers (note 501 above) 49 where it is argued that there is no reason why the right of publication could also apply to 'the Internet and more specifically to the placement of a work on a web site for users to make transient copies of it by viewing it or more permanent copies by downloading it'.
The interactive nature of the Internet requires the individual member of the public to access the work to view or make use of it. While the availability of the work to be accessed by the public might constitute publication, whether it is a temporary copy that is made in the random access memory of a computer or a permanent copy that is downloaded for private use, it has been argued that the mere act of making a work available on the Internet could essentially constitute a transmission of the work in a diffusion service.541 If there is any merit in this latter argument then t4e making available of the work on the Internet would not fall within the right of publication as publication, in terms of the Copyright Act, does not extend to transmissions of works in a diffusion service.542 Consequently if the making available of works in a diffusion service is considered as transmissions in a diffusion service, then the right of publication, as currently contained in the Copyright Act, would not be implicated. It follows that the copyright owner could maintain control over the digital transmission of his work in terms of the exclusive right to transmit the work in a diffusion service.543 It is however unsettled whether the Internet could be regarded as a diffusion service.544
The interactive element of the Internet that requires the member of the public to access the work once it has been made available to them would fall within the scope of the 'right of communication to the public or the making available right' of the WCT.545 This right would effectively allow the copyright owner to control works that have been made available on the Internet for use by the public and protect themselves against the unauthorized use of their works.546 Alternatively, the copyright owner could exercise control in terms of either the right of reproduction as publication does amount to the implication of this right or the right of distribution as 'infringement by publication amounts to no more than infringement by distribution'.547 The more simplistic solution is discussed below.
541de Villiers (note 501 above) 49.
542Section 1(5)(d)(iii).
543 Section 6(e) contains the copyright owner's exclusive right, in respect of a literary or musical work, to transmit the work in a diffusion service.
544Coppenhagen (note 115 above) 440.
545Article 8.
546Bitar, Bottero and Crosetti (note 32 above) 11.
547LAWSA (note 537 above).
The scope of the application of other forms of communication as contained in the Copyright Act to the digital age is also questionable.548 Further, it is submitted that cognizance must be taken of the fact that these communication rights are drafted in terms of an analogue environment. It is therefore argued that they do not specifically address development of and advances in technology. For example, they do not comply with the second part of the right contained in the WCT, which is the interactive element of making the work available to the public. Ithas been established that this right relates specifically to digital transmissions and use of works549 over the Internet. It is therefore submitted that the Copyright Act should be amended accordingly to comply with the provisions of Article 8 of the WCT. Contracting parties, are in terms of Article 8, given a choice as to whether to include the right within an existing exclusive right or in terms of the enactment of a new right.550Itis agreed that South Africa should, when implementing the WCT, introduce a new right of communication to the public that specifically addresses all categories of work and the interactive transmissions of the Internet.551 Itis submitted that this would involve a simplistic approach that would evade any difficulties of including the right within the scope of an existing right and would guarantee the copyright owner with an understandable, unambiguous and exclusive right of communication to the public that would protect him against unauthorized transmissions of his work over the Internet.
The next section considers the provisions of the Copyright Act relating to infringement of the exclusive rights of the copyright owner in a digital context.