seeks to confer on the creators the power to restrict or deny distribution of their works.
American courts have conferred on copyright owners nearabsolute power of control o v e r unpublished worksno
matter how newsworthy or germane to a wouldbe users' scholarly projects. In effect, the Courts are endorsing the
use of copyright as a device to enforce private censorship in the name of 'authorship.'" [Peter Jasci "Toward a theory
of copyright: the metamorphoses of 'authorship'" Duke Law Journal Volume 1991 page 455].
The notion below also has currency in the USA:
"Copyright law is a kind of giant First Amendment dutyfree zone. It flouts basic free speech obligations and standards
of review." [Jed Rubenfeld "The freedom of imagination: Copyright's constitutionality" (2003) 112 Yale Law 1].
Page 635 of [2016] 4 All SA 623 (GJ)
In addition to these criticisms in Biotech Laboratories (Pty) Ltd v Beecham Group PLC and another [2002] 3 All SA
652 (SCA) at 659 Harms JA observed that South Africa has moved away from the continental approach
emphasising the rights including moral rights of the author towards the to the AngloAmerican model where
commercial rights are dominant. He said:
"The definition of 'author' in s 1 also covers a large number of persons who, in the ordinary sense of the word, are not
authors but persons with financial interests in the end result. For instance, the author of a computer program is the
person who exercised control over its making. One consequently does not have to be a cynic in order to be sceptical
about the philosophical premise."
[28] Caution should be exercised in elevating lofty pronouncements to guiding principles in ascertaining the intent
and purport of the Act within our constitutional framework. In Bertie van Zyl (Pty) Ltd and another v Minister for
Safety and Security and others 2010 (2) SA 181 (CC) per Mokgoro J at paragraph 90 [also reported at 2009
(10) BCLR 978 (CC) Ed] that the Courts must give effect to the fundamental values of the Constitution when
interpreting legislation. Statutes must be construed contextually and, given section 39(2) of the Constitution,
where possible, consistently with the Constitution: Investigating Directorate: Serious Economic Offences and
others v Hyundai Motor Distributors (Pty) Ltd and others: In re: Hyundai Motor Distributors (Pty) Ltd and others v
Smit NO and others [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC) was cited as the proper
approach:
"[J]udicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do
not, provided that such an interpretation can reasonably be ascribed to the section."
Mokgoro J stated further:
"A court may thus avoid unconstitutionality by ascribing a constitutionally compliant meaning to legislation, as long as
that meaning can reasonably be ascribed to the provision; that is, the interpretation must not be 'unduly strained'."
[29] The notion that the owner's copyright is conditional on exploitation is in principle unrelated to the main
purpose of the Act which is to grant a qualified monopoly to the copyright owner and to reward the creator of
the intellectual property. Unlike other forms of intellectual property such as trade marks, the Act does not
prescribe at all how the owner should use or exploit the work. Can nonexploitation or publication dilute the
owner's copyright or remedies for infringement? In Salinger v Random House Inc 811 F.2d 90 (2d Cir. 1987) the
US Court of Appeal upheld the right of an author to prevent the publication of his private unpublished letters
even though he had no intention of publishing. In this case his right to privacy was held to override fair use.
There was no acknowledgement in this case of an exploitation exception.
[30] The view that copyright aims to promote public disclosure and dissemination of works cannot be regarded as
a true reflection of the purpose or intent of the Act and is not part of our copyright law. The respondents'
conception of the purposes of the Copyright Act is overbroad. The Act by no means purports to regulate or
promote the free spread of ideas
Page 636 of [2016] 4 All SA 623 (GJ)
although it undoubtedly is a mechanism by which this result may be effected. It is straining the proper limits of
the Act to find some kind of implied condition of dissemination in the conferral of copyright. In my view, the "no
waste no harm" principle finds no place in the Act. Copyright law has existed for several centuries in statutory
form. It would be expected that a rich body of law would have crystallised by now, if not in South Africa then
in other jurisdictions. No such authorities have been produced by the respondents and in our law none is to
be found.
[31] South Africa is a signatory to the Berne Convention which standardises copyright law to a great extent. Article
14 of the Berne Convention Paris text 1971 provides that the owner of copyright in a cinematographic work
shall have same rights as the author of an original work and the rights of ownership shall be a matter for
legislation in the country where the protection is claimed. This is precisely what section 21 of the Act achieves.
The Act is in conformity with the obligations of South Africa under international law in this respect. Thus
historically, internationally and comparatively viewed, the Act is not out of kilter in not having an implied
exploitation exception. The constitutionality of section 24 is dealt with further below.
[32] Creative work has indeed become commoditised. The concept of authorship has shifted with the advances in
media technology and production management from the de facto author or creator to the entrepreneur as
noted in Biotech. This has enabled the huge growth of the entertainment and computer software industry
which has bestowed undeniable benefits on mankind which may not have been hitherto possible. This
statutory shift of authorship of a film does not necessarily mean that the film maker cannot be the owner and
enjoy the rewards as expressed in the Frank & Hirsch case.
[33] The Act strikes a balance between the rights of the de facto author ie the creator of the work and the