Golden China TV Game Centre and others v Nintendo Co Ltd
[1996] 4 All SA 667 (A)
Division:
Appellate Division
Date:
25 September 1996
Case No:
55/94
Before:
Corbett CJ, EM Grosskopf, Harms, Schutz and Plewman JJA
Sourced by:
JJF Hefer and I Potgieter
Parallel Citation:
1997 (1) SA 405 (A)
. Editor's Summary . Cases Referred to . Judgment .
Commercial Law Copyright Act 98 of 1978 Section 1 Definition of "cinematograph films" Whether video games fall
within the definition An analysis of the elements of the definition conclusive that video games enjoy copyright protection
as "cinematograph films".
Copyright Copyright Act 98 of 1978 Section 1 Definition of "cinematograph films" Whether video games fall within
the definition An analysis of the elements of the definition conclusive that video games enjoy copyright protection as
"cinematograph films".
Editor's Summary
The Respondent (a Japanese company that creates, manufactures and distributes video games) was the alleged
owner of the copyright in a number of video games. In the court a quo, the Respondent was granted an interdict
against the Appellants (local traders, retailers and wholesale distributors of video games), restraining the latter
from importing and dealing with copies of the video games in which the Respondent claimed copyright. The court
found that video games enjoy copyright protection as "cinematograph films". Leave to appeal was granted.
Held The Court, referring to various authorities, described video games as computers programmed to display on a
television, a predetermined sequence of images which is variable and under the control of the player. The Court
then analysed the disputed elements of section 1 of the Copyright Act 98 of 1978 (the "Act") read together with the
Copyright Amendment Act 125 of 1992 (the "amending Act"). According to the said section, "cinematograph films"
are defined as 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".
The Appellant contended that the first fixation of a video game was the computer program used to constitute the
circuitry in the ROMS. The Court held that the computer program was but a step in the fixation of the film.
The Appellant furthermore argued that the definition of "cinematograph films" should be construed to refer to a
fixed sequence of images only. The Court pointed out that the definition under consideration mentions "a"
sequence of images. The Court also stressed that the player of a video game does not have control over the
sequence of images that appear on the video game screen and the game merely allows him a choice of a limited
number of sequences. The Court concluded that a video game's sequence of images complies with the requirements
of section 1 of the Act.
Page 668 of [1996] 4 All SA 667 (A)
The Court, in considering the Appellant's argument that video films are not covered by the Act, suggested that
section 1 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. The Court concluded that video games do fall within the
provisions of section 1 of the Act and dismissed the appeal.
Notes
For the Copyright Act 98 of 1978, see Butterworths Statutes of South Africa 1996 (Vol 1)
For the Copyright Amendment Act 125 of 1992, see Butterworths Statutes of South Africa 1996 (Vol 1)
For Copyright generally, see LAWSA Reissues (Vol 5(2))
Cases referred to in judgment
Appleton and Another v Harnischfeger Corporation and Another 1995 (2) SA 247 (A)
Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968 (2) SA 678 (A)
Nintendo Co Ltd v Golden China TV Game Centre & Others 1995 (1) SA 229 (T)
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)
Thom en 'n Ander v Moulder 1974 (4) SA 894 (A)