in question were created before the commencement of the amending Act, the amending Act had no rel
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evance to the case. Whether that submission (subject to the proviso contained in section 43(1)(c ) of the Act) is, in
the light of Appleton and Another v Harnischfeger Corporation and Another 1995 (2) SA 247 (A) 261F262B, correct,
also seems arguable.
In view of these uncertainties, it is advisable to dispose of the matter with reference to the law both before and
after the 1992 amendment. For the sake of convenience I shall quote the sections concerned as they appear in the
amending Act words in square brackets indicate omissions from the 1978 Act and words underlined represent
insertions by the amending Act.
Section 2(1) of the Act lists the categories of works that are eligible for copyright. One such category is
"cinematograph films [to which are assimilated works expressed by a process analogous to cinematography]". The
term itself is defined in section 1:
" 'cinematograph film' means the [first] fixation by any means whatsoever on film or any other material of a sequence of
images capable, when used in conjunction with any mechanical, electronic or other device, of being seen as a moving
picture and of reproduction and includes the sounds embodied in a soundtrack associated with the film, but shall not include
a computer program."
As with many definitions in the Act and its antecedents, very wide terms have been employed. The only reason for
this can be an intention to cover future technical innovations by using general words. Legislative inertia ought not
to impede human ingenuity and the reasonable protection thereof. Typical is the case of computer programs. The
wide wording of the Act made it possible to grant them protection as literary works (Northern Office Micro Computers
(Pty) Ltd & Others v Rosenstein 1981 (4) SA 123 (C); Payen Components SA Ltd v Bovic CC & Others 1995 (4) SA 441
(A)). It was only in the amending Act that the Legislature dealt with the subject. This general scheme of the Act
suggests to me that the definitions in the Act should be interpreted "flexibly, so that it would cover new
technologies as they appeared, rather than to interpret those provisions narrowly and so force [the Legislature]
periodically to update the act" (WGN Continental Broadcasting Co et al v United Video Inc 693 F.2d 622 at 627).
Page 672 of [1996] 4 All SA 667 (A)
The basic approach of counsel for the appellants to the case was different. He joined issue with the approach of
Hartzenberg J (at 238FG) that the logical way to deal with the matter is to consider the definition of
"cinematograph film" and to see whether a video game falls within the definition or not, and that it is wrong to look
for similarities and differences between video games and conventional films. In my judgment, the court's approach
cannot be faulted. The Legislature elected, quite prudently, to define terms that have somewhat different ordinary
meanings. That means that the definitions have precedence and it would be wrong, at least in the context of this
Act, to whittle down wide language to fit one's preconceived ideas of what the terms mean or should mean. The Act
is intended not to stifle, but rather to promote human ingenuity and industry. With this in mind, I proceed to deal
with the elements of the statutory definition in dispute in order to determine whether video games fall within its
boundaries.
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"First Fixation"
As a rule, a work has to be fixed or reduced to some or other material form before it can be eligible for copyright
(section 2(2)). Before its amendment in 1992, this subsection imposed the requirement on literary, musical and
artistic works only, but it is now applicable to all works (except, obviously, a broadcast or programmecarrying
signal). As far as cinematograph films are concerned, the fixation requirement has been part of the definition since
1978. It replaced the requirement of "recording" in the 1965 Act. Since the amending Act, the requirement is
therefore to be found, not only in the definition, but also in section 2(2).
In the USA in Dirkschneider (at 479) an argument that video games are not fixated but are "merely ephemeral
projections" on a screen was rejected out of hand. See also Williams Electronics Inc v Arctic International Inc 215
USPQ 405 at 408. As far as the present appeal is concerned, it is no longer in dispute that the video games in issue
have been fixed. The concession was fairly made. Had it been otherwise, they could not have been copied, and
copying is admitted. What constituted the first fixation was, on the other hand, hotly debated. The court below (at
240C241A) held that the first fixation takes place when the game is fixed in the ROMs. Counsel for the appellants
argued that the first fixation of the game was the computer program used to constitute the circuitry in the ROMs.
The ROMs were, on this argument, simply a product of the first fixation. It transpired during argument that, although
interesting, the debate did not affect the outcome of this case. The determination of the "first" fixation may have
affected the term of copyright if one assumes that the first fixation is the same as the "making of " a film (section
3(2)(b)). See also section 44(1). I know of no other function the requirement performed, especially as far as the
subsistence of copyright is concerned. It is no wonder that the word was deleted by the amending Act. Since the
term of copyright is not in issue and since counsel could not indicate where the argument led, I find it unnecessary
to say much more on the point save that it seems to me that the computer program was but a step in the fixation of
the film.
"A Sequence of Images"
The obvious difference between a "conventional" cinematograph film and a video game lies in the fact that, with the
former, the sequence of images is fixed whereas in the case of the latter the sequence of images is, to an extent,