the video game. The program controls the visual display and allows the player to manipulate the characters.
Integrated circuits are then manufactured. In the one (named by Nintendo a "CHROM"), all the visual elements of
the game are stored in an encoded form. They are the background, the characters, the text and the other items in
all their different poses, positions and configurations. The other (the socalled "PROM") contains the audio
elements of the game and also a program that operates the functioning and display of the game, i.e. it dictates the
game's play sequence. By the very nature of a ROM, the date stored in it is fixed and cannot be altered. Data stored
in the CHROM is, by the use of electronic equipment, converted into video signals that define a coloured and
moving graphic display on the screen. The program in the PROM operates on this data and retrieves the stored
visual data elements in the CHROM and causes them to be displayed on the screen sequentially.
Page 670 of [1996] 4 All SA 667 (A)
The Legislative History of Copyright Protection for Cinematograph Films
Although invented in 1896, cinematograph films did not, eo nomine, enjoy copyright protection under the Patents,
Designs, Trade Marks and Copyright Act 9 of 1916. Films were included under the classical heading of a "dramatic
work". It is important to note that even at that early stage in the technical history of films, the Legislature was at
some pains to provide for the protection of technological innovations. A "cinematograph" was defined to include
"any work produced by any process analogous to cinematography". A similarly wide definition was given to a
photograph (Schedule III section 35(1)). cf. also Laddie Prescott & Victoria, The Modern Law of Copyright and
Designs, 2nd ed, vol 1, at 367.
On the other hand, and following the line taken in the United Kingdom in its 1956 Copyright Act, the Copyright
Act 63 of 1965 provided separately for the subsistence of copyright in cinematograph films (section 14). A
cinematograph film was defined (section 1(1)(viii)) to mean:
"any sequence of visual images recorded on material of any description (whether translucent or not) so as to be capable, by
the use of that material
(a)
of being shown as a moving picture: or
(b)
of being recorded on other material (whether translucent or not) by the use of which it can be so shown."
The term "copy", in relation to a cinematograph film, meant any print, negative, tape or other article on which the
film or part of it is recorded (section 1(1)(ix)).
Again one finds the use of very general terms such as "any sequence", "recorded on material of any description",
"on other material" and "or other article". (For the sake of completeness I should add that the
View Parallel Citation
definition was extended by section 14(9) which provided that a cinematograph film shall be taken to include the
sounds embodied in any soundtrack associated with the film.)
The dictionary or ordinary meaning of a cinematograph film is quite different. The Shorter Oxford English Dictionary,
for example defines "cinematograph" as a "device by which a series of instantaneous photographs of moving
objects is projected on a screen so as to produce the effect of a single motion scene".
The British counterpart of the 1965 definition was the subject of the decision in Spelling Goldberg Productions Inc v
BPC Publishing Ltd [1981] RPC 283 a judgment quoted with approval by the court a quo (at 236EH). Judge Mervyn
Davies QC (at 287 1 3031 in the Chancery Division) said with reference to that Act, that a cinematograph film has
three characteristics: "It has a sequence of images, it is recorded on material, and it is capable of being shown as a
moving picture." The Court of Appeal (per Buckley LJ) quoted this analysis without demur (at 294 1 2023) but went
on to overrule the judgment on other grounds. In issue was whether reproducing a single frame from a
cinematograph film was an infringement of the copyright in the cinematograph film, a question totally unrelated to
the question before us. Nevertheless, it seems that the dictum gave a fair summary of the definition under the 1965
Act. Laddie Prescott & Victoria (op. cit. at 383) make the point that "(t)he wording [of the 1956 Act] makes it clear
that the concept 'cinematograph film' is not tied to any particular technology ...".
The 1965 Act was replaced by the 1978 Act. This Act, influenced somewhat by the Continental approach to
copyright, broke to some extent with the
Page 671 of [1996] 4 All SA 667 (A)
English legal tradition on copyright. There is reason to assume that, at the time of enactment, video games were, if
already invented, not yet commercially important and probably not a matter the Legislature considered. The Act was
amended from time to time, but of consequence to the present case is the Copyright Amendment Act 125 of 1992.
This Act (the "amending Act") came into operation on 10 July 1992. Proceedings in the present case were launched
three days earlier, on 7 July, when the court file was opened by the Registrar of the court below. Service of the
application took place after 10 July. In the court below, and before us, counsel accepted that the case had to be
decided on the statute as it was before the amendment. This was on the assumption that once the Registrar had
"issued" an application, the case was pending and, as a rule, amending legislation does not affect pending litigation
(Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968 (2) SA 678 (A) 684EF; Thom en 'n Ander v Moulder
1974 (4) SA 894 (A) 902DE). I am not, without argument, prepared to hold that the mere fact that in motion
proceedings the Registrar has taken the steps set out but before service on the respondent, proceedings are, for
purposes of the rule of interpretation under consideration, pending. Counsel further submitted that since the works