variable and under the control of the player. Emphasising this difference, counsel for the appellant submitted that
the definition should be read to refer to a fixed sequence
Page 673 of [1996] 4 All SA 667 (A)
of images only. In support of the argument, he relied heavily on the words "capable ... of reproduction" in the
definition. The argument was this: the definition required that the sequence of images must be capable of
reproduction; if the sequence can be changed, it is not capable of reproduction; thus, the section envisages an
invariable sequence of images. I do not agree with this grammatical exegesis. "Reproduction", in the context of
copyright, refers to the copying of the work (i.e. the cinematograph film) in question (cf. Laubscher v Vos & Others,
Judgments on copyright 3 (WLD)
View Parallel Citation
at 6) and not to ephemeral versions, renditions or applications of a work. This is clear if regard is had to the
definitions of "copy" and "reproduction" (section 1) and, especially, section 8(1) of the Act. What seems to me,
therefore, to have to be capable of reproduction is the film itself and not the sequence of images. This intention
appears rather more clearly from the signed Afrikaans text of the Act.
The 1965 definition referred to "any sequence of visual images" whereas the definition under consideration
mentions "a sequence of images". The use of the indefinite article "a" (Afr: "'n") instead of "any" (Afr: "enige")
makes it clear, counsel submitted further, that a cinematograph film cannot be subdivided into a myriad of shorter
films. I am prepared to accept for the sake of argument the proposition that subdividing a film does not produce a
number of new films. That is, however, beside the point. The point is whether, within the present context, there is
any discernible difference in meaning between "a" compared with "any" cinematograph film. The answer is no.
It is instructive to consider the approach consistently adopted to a similar phrase found in a statutory definition
of "audiovisual works" in the United States of America. Their phrase is "a series of related images". In Midway Mfg
Co v Arctic International Inc [1983] 704 F.2d 1009 at 10111012, [1983] 218 USPQ 791 at 792793, the Court of
Appeals , Seventh Circuit, said the following in relation to it:
"It is not immediately obvious that video games fall within this definition. the phrase 'series of related images' might be
construed to refer only to a set of images displayed in a fixed sequence. Construed that way, video games do not qualify as
audiovisual works. Each time a video game is played, a different sequence of images appears on the screen of the video
game machine assuming the game is not played exactly the same way each time. But the phrase might also be construed
more broadly to refer to any set of images displayed as some kind of unit. That is how we construed it in WGN Continental
Broadcasting Co. v United Video Inc. 693 F.2d 622, 216 USPQ 97 (7th Cir. 1982), where we held that a news program and a
thematically related textual display ("teletext") transmitted on the same television signal but broadcast on different television
channels constituted a single audiovisual work. We see no reason to construe it more narrowly here. ..."
"... Playing a video game is more like changing channels on a television than it is like writing a novel or painting a picture.
The player of a video game does not have control over the sequence of images that appears on the video game screen. He
cannot create any sequence he wants out of the images stored on the game's circuit boards. The most he can do is choose
one of the limited number of sequences the game allows him to choose. He is unlike a writer or a painter because the video
game in effect writes the sentences and paints the painting for him; he merely chooses one of the sentences stored in its
memory, one of the paintings stored in its collection."
Page 674 of [1996] 4 All SA 667 (A)
Another matter that can be stressed, is that a substantial portion of the visual images are repetitive and remain
constant each time the game��is played (Stern Electronics at 856). My conclusion on this part of the argument is then
that a video game's sequence of images does comply with the requirements of the definition.
View Parallel Citation
"Fixation by any means whatsoever on film or other material of a sequence of images"
If I understood counsel for the appellant correctly, he submitted that since the images themselves were not put on
the ROMs, but only the microelectronic circuit that represents them, the images have not been fixed on the ROMs. If
this argument is taken to its logical conclusion, it will mean that video films are not covered by the definition. One
can then, by way of analogy, argue that, for purposes of the definition of a "record", sounds are not "embodied" in
compact discs but only digital notations. Apart from these practical objections to the interpretation submitted, I am
of the view that the argument does not take sufficient account of the rest of the definition. Images can be fixed on
"any other material" and that is clearly not limited to filmlike material. In addition, the definition contemplates the
use, not only of a mechanical device, but also of an "electronic or other device" to make the sequences of images
visible as a moving picture. That suggests to me that the stored images need not be stored in their original form,
i.e. as images. This is confirmed by the change to the wording used in the 1965 Act (which required a fixation of
visual images) to the present definition that omits the word "visual".
"But shall not include a computer program"
This limitation was introduced by the amending Act. It does not affect this case. It was common cause that the
video games are not computer programs although computer programs were used during their creation and
although they may have been fixated by way of such programs.