statutory author ie the copyright owner. VIA as creator sold its work to the applicant for substantial material
gain in a commission agreement. This is the quid pro quo upon which section 21 of the Act is premised. The
parties may contract with each other to vary or exclude the ownership of the copyright vesting in the
commissioning party under section 21(1)(e). The Act is therefore not the instrument by which the rights of the
film maker are curtailed or excluded. It simply regulates the default rights of the parties absent an agreement
to the contrary. Even then, it does not per se limit freedom of expression as set out below. There is nothing in
this arrangement which offends any constitutional value. The film maker thus has a choice in retaining its
copyright and thereby exercising the rights of use or exploitation of the work that VIA claims. In similar
manner an employee too can exclude the operation of the copyright ownership vesting in the employer by
agreement. Stiff v Reid Daly 2004 BIP 240 (W). An implicit exploitation exception is not required to give effect
to the Act and does not exist.
Single copy and fair dealing
[34] The respondents' single copy exception argument is that that the non owner author of the work may keep a
single copy of the film: It is part of the general right to fair dealing. This proposition requires qualification.
Page 637 of [2016] 4 All SA 623 (GJ)
No substantive single copy exception exists in the Act. Reliance was placed on section 13 read together with
regulation 2 of the Copyright Regulations 1978 GN R2350 (22 December 1978). These enactments are an
application of the Berne Convention. The regulation contemplates the permitted reproduction of a reasonable
portion of the work in such a manner that the exploitation is not in conflict with a normal exploitation of the
work and is not unreasonably prejudicial to the legitimate interests of the owner of the copyright. This
exception will depend on the facts and is based on the "Berne three step test" which also requires that the
reproduction may only be permitted in special cases. Respondents argue that this is a special case: the
applicant, a copyright holder does not wish to exploit the work but still wishes to prevent its distribution.
Regulation 2 does not stand alone. When read with regulation 3 and 5, it does not expand the permitted
scope of a reproduction or single copy beyond specified use by a library or archive and has no application in
this case. There is simply no warrant under Act beyond the numerus clausus of permitted use, to infer a single
copy exception. OH Dean: Handbook of South African Copyright Law (Juta) page 195 states:
"Unlike the position in the United States of America, the Copyright Act provides for an express, finite list of fair
dealing exceptions, and a defendant must bring itself within one of the stipulated exceptions."
[35] Nor has VIA demonstrated that it qualifies to use a copy of the work or part thereof for a recognised category
of fair dealing. It was sought to bring the showing of the work at the Franchhoek Festival within the purview
of section 12, as a form of criticism or review. This is patently a sham. Vollenhoven's intention is manifestly
clear: It is to "get the story out there". It was argued that respondents had the right to fair dealing in
reporting current events. Despite the high public interest of the film, it deals primarily with the management of
public funds by the previous government and secondarily the response by the present government.
Vollenhoven has stated ". . . there is not a single fact in this story that's new". Only the response by the
present government has a element of currenthood but this is not the predominant or material subject of the
work. Even this is tenuous. Many of the actions of the previous government are topics of controversy and high
public interest which will have an impact on society which will be discussed for many years to come. The work
cannot be conflated with current events.
[36] It was submitted that fair dealing was interpreted liberally in Canada Society of Composers Authors and Music
Publishers of Canada (SOCAN) v Bell Canada 2012 SCC 36 at paragraphs 1011 and in England Pro Sieben Media
AG v Carlton UK Television Ltd [1999] 1 WLR 605 at 613. The term "fair dealing" has not received judicial
interpretation in South Africa. Various factors have been identified in comparative jurisprudence. It was
submitted that the following are included: the nature and purpose of the use; the nature of the copyright
work; the amount and sustainability of the use; the effect on the market and the value of the work. These
criteria are premised on bona fide use and without formulating a comprehensive meaning; the least that can
be stated in this case is that fairness encompasses a genuine purpose and not a pretext for a purpose which
is not contemplated under fair dealing such as dissemination to the public, even
Page 638 of [2016] 4 All SA 623 (GJ)
to restricted or selected audiences. In conclusion, no bona fides in dealing with the work has been established
by the respondents. No case for the statutory right to a single copy has been made. The Act does not provide
this right and in any event there is no such reservation of ownership under the TPC agreement. On the
contrary, it clearly vests ownership in the applicant of all materials made in producing the work.
[37] Insofar as reliance was placed on section 20 of the Act by VIA, it flows from the statutory shift in the definition
of authorship of a cinematographic work that the author's moral right under section 20 of the Act vests in the
applicant and not the second respondent. VIA cannot claim any rights as author. There is no residual category
of authorship available to it under the Act.
Constitutional invalidity
[38] The respondents invoke freedom of expression under section 16(1) of the Constitution, specifically subsection
(b) freedom to receive or impart information or ideas and subsection (c) freedom of artistic creativity. It is
contended that the exclusion of an exploitation exception in the Act unjustifiably limits these rights and that
an exploitation exception should be read into section 24. The respondents say the applicants are violating
Vollenhoven's freedom of speech by not allowing her to show or distribute her own documentary. This is
disingenuous. Vollenhoven in her letter dated 28 June 2013 said: