Should I share my GIF?

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GIFs, or graphic interchange formats, are widely used. GIF, according to the format’s creators is pronounced “jif”, after the American brand of peanut butter – a contentious issue however, with many, including the White House weighing in on the debate and insisting that it should be pronounced with a hard “g” as in “graphic”. Regardless of your stance on the pronunciation thereof, you have probably encountered GIFs at some point. GIFs are particularly popular on social media platforms with Facebook and Twitter now having dedicated GIF buttons.

An animated GIF is a video file which comprises a number of frames which can be played in a sequence to form an animation. Due to the file’s small size, the resulting animation is usually quite grainy but is easily shared. The animation has no audio and can loop endlessly or stop after a few sequences.

GIFs often reproduce short extracts of films, sporting events or other copyright protected material. In some instances, GIFs include overlying captions which make them look somewhat different from the original work.

With the ever increasing popularity of GIFs and the ease with which one can now upload a GIF onto social media platforms and share them – is it legal to make and share GIFs of copyrighted material on the internet?

While this matter has not yet come before a court, some copyright holders have started enforcing their rights over video content that has been replicated using GIFs. While no legal action has yet been taken, Barclays Premier League has warned fans not to post unofficial videos of soccer goals online as this amounts to copyright infringement. They are even in the process of developing technologies to detect when GIFs of this kind have been shared in order to protect their copyright. The NFL (National Football League) in the USA has also sent several takedown requests to Twitter for certain tweets which included GIFs of clips of plays, highlights and blunders during a football game – all being copies of recorded events.

Is it Infringement?

In South Africa, copyright law is governed by the Copyright Act No. 98 of 1978 (“the Act”). While the Act has not yet been updated to deal with the use of copyright in an internet age, a copyright work of this kind would fall within the scope of a cinematographic film – a work which is protected by the Act.

When a GIF is created, a copy of the original work is made and in some instances, an adaptation of the original work is made. In the absence of any exceptions or consent from the author of the work, these acts infringe the copyright owner’s exclusive rights to the work accorded by the provisions of the Act.

Section 2 of the Copyright Regulations allows for reproduction of a work provided that certain provisions are adhered to:

‘The reproduction of a work in terms of s13 of the Act shall be permitted—

  1. a) Except where otherwise provided, if not more than one copy of a reasonable portion of the work is made, having regard to the totality and meaning of the work; and
  2. b) if the cumulative effect of the reproductions does not conflict with the normal exploitation of the work to the unreasonable prejudice of the legal interest and residuary rights of the author.’

The problem with this provision is that it is rather ambiguous. What exactly is meant by a “reasonable portion” of the work? It is conceivable that for a film, if enough of a significant or distinctive scene of that film is copied in a GIF, that it constitutes more than a reasonable portion of the work and therefore amounts to copyright infringement. Similarly for a sporting event, a GIF comprising a clip of a crucial goal could also constitute copyright infringement.

Are there any defences?

So what if the GIF does constitute more than a reasonable portion of the work or if you hit the share button one too many times and more than one copy is made? Are there any defences available?

The Act provides a limited number of exemptions from copyright infringement. In particular, it provides for fair dealing exemptions. These exemptions allow the public to make limited use of the copyright material without the consent of the copyright owner. Of particular relevance are the provisions of section 12(1)(b) and (c) of the Act in which copyright is not infringed if it is used for the purpose of criticism and review of that work or for the purpose of reporting current events.

In the case of a GIF which reproduces part of a protected work without modification (so that there would be no question that it is a parody), it is unlikely that the use of the GIF would be treated as a criticism or review or that it would be regarded as a report of current events.

For a GIF which may be considered an adaptation of the work i.e. when the GIF has an overlying caption or quotation, another defence may be applicable. Section 12(3) of the Act provides that copyright in certain works will be not infringed by a quotation taken from the work provided that “it compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose and that the source shall be mentioned, as well as the name of the author if it appears on the work”.

Whether these GIFs can be considered quotations as envisioned by the Act remains to be seen. However, from a practical perspective, it may be difficult to adhere to and it is therefore unlikely that the acknowledgement requirement is fulfilled.

While not every GIF created or shared will fall foul of the provisions of the Act and amount to copyright infringement, it is wise to consider the content thereof before clicking that share button. GIF sharers should also be mindful that even sharing a link for a GIF of a movie or sporting event is still considered copyright infringement.

Even if you have been guilty of sharing a GIF which constitutes copyright infringement, it doesn’t necessarily mean that you will be facing a copyright infringement lawsuit anytime soon – the practical implications in enforcing these rights, particularly in respect of viral GIFs, are vast. You should however proceed with caution.

Hillary Brennan – Practitioner
hillary@mrf.co.za

Monty Rademeyer – Partner
monty@mrf.co.za

Want to know more about the author? Read her “Me in a Minute” blog post.

Copyright Amendment Bill 2015

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The Copyright Amendment Bill 2015, which aims to amend the Copyright Act 98 of 1978, has been published by the Department of Trade and Industry (DTI) for public comment. The DTI says the current policy revision is based on the need to bring the copyright legislation into line with the digital era and developments at a multilateral level.

Jeff Radebe, the Minister in the Presidency responsible for Performance Monitoring and Evaluation, who announced the approval of the publication of the Bill, stated that “The Bill addresses the licensing of copyright work and material in relation to commissioned work to prevent commercial exploitation”  and that the Bill “will help government to address the plight of musicians and performers by ensuring that royalties are paid on time by recording companies and broadcasters as most of them are dying as paupers.” However, while this sounds good in theory, a reading of the Bill exposes many errors, inconsistencies and far-reaching problems that are causing an uproar amongst industry experts.

Some of the more noteworthy proposed amendments are the introduction of a new class of works that will be eligible for copyright, namely “craft works”, such as pottery, jewellery and folk-art, a re-sale royalty right for artistic works, a “fair use” exception, which may only be used in limited circumstances, the management of digital rights and the introduction of a provision that purports to stop brand holders from restraining parallel imports through copyright infringement proceedings.

In principle, the Bill is a step in the right direction. There are some positive proposals such as provision for disabled people in that any translated or amendment of protected works for their purposes will not be considered copyright infringement, and the introduction of collecting societies for artists or owners of copyright.

However, the problems with the Bill far outweigh these positive developments. It has been submitted by industry experts that the Bill is badly drafted and difficult to understand. Further, it appears that basic principles of copyright law (and some other laws) and even the Constitution have been disregarded.

Some proposed provisions of the Bill are just absurd, such as the introduction of a provision that all copyright assignments shall be valid for only 25 years and the criminalisation of minor transgressions such as non-payment of a re-sale royalty to the original creator of a work, who may well be unknown to the purchaser at the time of the sale.

Possibly one of the most significant changes the Bill proposes is that the ownership held by individuals will automatically transfer to the state on their death. Not only is this provision unprecedented, the Bill does not indicate how this transfer will be administered. Surely depriving a person or their heirs of the benefits of a work is unconstitutional? Strangely, another part of the Bill prohibits the state from assigning copyright to anyone else – so the copyright can never be sold or exploited once it is transferred to the state.

It has been suggested that the Bill should be completely re-drafted – Professor Owen Dean, chair of intellectual property law at Stellenbosch University, believes that the Bill “displays a lamentable lack of knowledge and understanding of the basic principles of copyright law. While it has some good aspects, it is fundamentally so flawed that the DTI should go back to the drawing board and start afresh by using a drafting committee that has expertise in copyright law”.

Professor Dean warns that “if this Bill becomes law and the Copyright Act is amended accordingly, it will do inestimable harm, to our copyright law and will cause it to plunge into a freefall leading to decline”.

The public were given until 26 August 2015 to comment on the Bill. It is believed that a recent meeting facilitated by the South African Institute of Intellectual Property (SAIIPL) allowed for intellectual property practitioners in the Gauteng area to ventilate their concerns and discuss the far reaching and controversial implications of the Bill. We now await the passage of the Bill through Parliament but it may be a few years before we know whether the Bill will become law. Who knows, it may be referred to the Constitutional Court or even completely re-drafted. All we can do now is watch this space…

Kim Rademeyer – Partner
kim@rademeyer.co.za

Monty Rademeyer – Partner
monty@rademeyer.co.za

Sources:

  1. “HOT OFF THE PRESS: SA Copyright Amendment Bill published for comment” http://afro-ip.blogspot.com/
  2. “Copyright Amendment Bill approved by SA Cabinet” http://mybroadband.co.za/news/government/130406-copyright-amendment-bill-approved-by-sa-cabinet.html
  3. “Copyright Amendment Bill boggles legal minds” moneyweb.co.za
  4. “Converting Copyright into Copywrong” by Professor Owen Dean, published in Vol 2 Issue 2 of the SAIIPL newsletter, August 2015

To Copyright Or Copyleft? That Is The Question!

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The two most common types of licences are “copyleft licences” and “permissive free software licences”.

Copyleft licences require that information necessary for reproducing and modifying the software must be made available to recipients of the “executable” (geek terminology).  The source code files usually contain a copy of the licence terms and an acknowledgment of the author.  In terms of copyleft the author surrenders some of its rights under copyright law.  Instead of allowing the software to fall completely into the public domain, copyleft allows an author to impose some restrictions on those who want to engage in activities usually reserved by the copyright holder.  Under copyleft, derived works (eg. variations or developments of the registered software) may be produced provided the derived works are released under a compatible copyleft scheme.  The underlying principle is that a person can benefit freely from the work of others, but any modification, variation or modification of the original software made by the person must be released under compatible terms.

The goal of copyleft is to give all users of the software the freedom to copy, distribute and modify (adapt) without restriction.  Copyleft licences are distinct from other types of free software licences which do not guarantee that all “downstream” recipients of a program receive these rights, or the source code which is needed to make these rights effective.
A permissive free software licence is a class of free software licence with minimal requirements about how the software should be redistributed.  A permissive free software licence allows a redistributor to remove or restrict the right to copy, distribute or modify and does not necessarily require the free distribution of a source code.  Thus this type of licence makes no guarantee that future generations or versions of the software will remain free.

It is apparent that it is possible for a permissive free software licence to include a provision that makes it incompatible with a copyleft licence.  For example a permissive free software licence could include a clause requiring advertising materials to the credit of the copyright holder.

When an author contributes code to an open-source project the resulting software may be an explicit licence (eg. the contributor’s licence agreement) or an implicit licence (eg. the open source licence).  Some open-source projects do not take contributed code under a licence, but actually require (joint) assignment of the author’s copyright in order to accept code contributions into the project (eg. OpenOffice.org and its Joint Copyright Assignment Agreement).

It is difficult to understand the legal implications of the differences between licences.  With more than 180,000 open-source projects available and its more than 1400 unique licences, the complexities of deciding how to manage open-source usage within “closed source” commercial enterprises have dramatically increased.

Open-source licences are not necessarily compatible, making it legally impossible to mix (or link) open-source codes under different licences.

Licence compatibility is an issue that arises when licences applied to software packages contain contradictory requirements, rendering it impossible to combine source code or content from such works in order to create new ones.

Commercialisation of derived software incorporating FOSS may not be straightforward.  The primary business model for closed-source software involves the use of constraints on the use of proprietary software and the restriction of access to the original source code, requiring the user to purchase the right to use the software.  To this end, the source code to closed-source software is considered a trade secret by its manufacturers.

FOSS methods, on the other hand, typically do not limit the use of software in this fashion.  Instead, the revenue model is based mainly on support services.  The source code of the software is usually given away and can be freely modified.  There may be some licence-based restrictions on re-distributing the software.  Generally, software can be modified and re-distributed for free, as long as credit is given to the original manufacturer of the software.  FOSS based software can generally be sold commercially, as long as the source-code is provided.  There are a wide variety of free software licences that define how a program can be used, modified, and sold commercially (see GPL, LGPL, and BSD-type licences).

Monkey Business

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According to the South African Copyright Act No. 98 of 1978 the owner of the copyright in a photograph is defined as the person responsible for the composition of the photograph.

However, what happens if an animal, rather than a person, is responsible for the composition of the photo? Who is then considered the owner of the copyright?

In 2011 a British wildlife photographer, David J Slater, left his camera unattended in a national park in North Sulawesi, Indonesia. A female crested black macaque monkey, got hold of the camera and managed to take a rather spectacular self-portrait, or rather a “selfie”.

The photo was published in numerous magazines and websites and was eventually placed on a website named Wikimedia Commons, which contains a collection of photographs which are open for public use. Slater, considering himself the rightful owner, requested the removal of the photo from the website. However, his request was denied.  Wikimedia Foundation argued that the monkey took the photograph and since monkeys can’t hold copyright, the image is in the public domain.

Since in most, if not all countries, the right to copyright ownership is limited to human beings, the  argument of Wikimedia Foundation seems to be valid. According to the UK’s Copyright, Designs and Patents Act 1988 the copyright in a photograph is owned by the person who creates it. The US Copyright Office has advised that, for work to be copyrightable, it must “owe its origin to a human being”.

Subsequently a legal battle between Slater and the Wikimedia Foundation ensued. Slater argued that he owns the rights to the image and the royalties which comes from the publishing thereof, because he set up the equipment which enabled the monkey to press the button and take the photograph.

However, The US Copyright Office settled the matter. It said that images taken by animals, including the 2011 primate self-shot, could not be registered for copyright by a human. Likewise the Office said that it will not register works produced by nature, animals or plants. The image therefore forms part of the public domain.

Slater might have had a reasonable argument, if the monkey had taken the photo on a command from Slater, that the artistic expression of the photo belonged to him and that the monkey was merely his assistant. However, since the monkey took the photo of her own volition, this argument was not tested.

It would seem that there is no space for so-called monkey business when it comes to copyright.

Monty Rademeyer – Partner
monty@mrf.co.za

The “i” in Knowledge

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A VIEW ON INDIGENOUS KNOWLEDGE IN SOUTH AFRICA

“… knowledge, unique to a given culture or society, which accumulates over generations, as communities interact with their environment …”

Even though certain manifestations of indigenous knowledge have already been recognised and protected by the Patents Amendment Act of 2005, the President recently assented to The Intellectual Property Laws Amendment Act 28 of 2013 which was published in the Government Gazette on 10 December 2013 (hereafter referred to as “the Act”). The Act will only come into operation on a date fixed by the President by proclamation in the Gazette.

The function of the Act is to provide for the recognition and protection of certain manifestations of indigenous knowledge as a species of intellectual property. The following are to be amended:

  • The Performers’ Protection Act of 1967

to provide for the recognition and protection of performances of traditional works, by providing copyright protection to the performance of a traditional work, whether it is in the form of  an artistic work, dramatic work, literary work or a musical work as defined in the Copyright Act;

  • The Copyright  Act of 1978

to provide recognition and protection for indigenous knowledge by providing the indigenous community from which the knowledge/work originated and acquired its traditional character, the right to authorship and the right to receive royalties and benefits associated with the economic exploitation of the works;

  • The Trade Marks Act  of 1993

to provide for the recognition of indigenous terms and expressions and for the registration of such terms and expressions as trade marks and to provide for further protection of geographical indicators, collective trade marks and certification marks in so far as they relate to indigenous cultural expressions or knowledge; and

  • The Designs Act of 1993

to provide recognition and registration of indigenous designs which can either be an aesthetic or functional design with an indigenous or traditional origin and a traditional character.

The Act also makes statutory provisions which provide for the establishment of a National Council in respect of indigenous knowledge, a National Database for the recording of indigenous knowledge and a National Trust and Trust Fund for the purposes of indigenous knowledge.

Ultimately the Act aims to empower communities and prevent exploitation of their knowledge. Communities will be able to form business enterprises in order to commercialise the traditional knowledge and rightfully benefit from it economically. The Act has however come under criticism a more in-depth review of certain aspects of the Act will follow in future.

Should you have any queries relation to Indigenous Knowledge, please feel free to contact us and one of our specialists will assist you.

MRF
info@rademeyer.co.za

iPolicy

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AN OVERVIEW OF THE DRAFT NATIONAL IP POLICY

The Draft National Policy on Intellectual Property was released for public comment in September 2013. The policy aims to co-ordinate and streamline intellectual property legislation in South Africa. Some of the objectives of the policy include “to improve access to IP- based essential goods and services, particularly education, health and food” and to “introduce a public health perspective into the IP laws”. These objectives and the strong focus on health were largely as a result of years of campaigning by organisations like Medicines Sans Frontiers (MSF) and the Treatment Action Campaign (TAC) for cheaper medicines, the price of which these organisations believe are inflated by patents and protection offered thereunder.

While the policy covers a wide range of issues, it is unfortunately not always clear and somewhat ambiguous – an aspect which has received much criticism.

Not much is said about Registered Designs and Trade Marks in the policy apart from the suggestion that ambush marketing legislation, which was used during the 2010 Soccer World Cup, should be extended to cover all large sporting events.

Copyright was afforded a little more attention. The policy recommended against extending the terms of protection beyond 50 years, choosing not to follow many other developed countries. It also suggests that royalty administration and collection should be centralised in one state-run collecting society. Reference is also made to allowing reverse engineering of software, the objective of which is to allow for software to be adapted for local needs of creating “broad exemptions for education, research and library use” as well as fair rights use for internet users.

Patents received the most attention with a strong focus on the patent prosecution system in South Africa. The current system is a deposit based system in which patent applications are only examined as to their formalities. If the application complies with the formalities, the application can proceed to grant. A drawback of such is a system is that more “weak” patents are granted, which could prevent people from doing acts, which, without the existence of the patent, they should be entitled to do. Such patents can only be removed from the register through lengthy and costly revocation proceedings where the merits of the patent are then assessed and decided by the court.

The policy recommends that an examination system be implemented, where patent applications are examined as to their merits. An examination on the merits requires an investigation into whether the invention is novel and inventive. It is believed that this will reduce the amount on “weak” patents that are granted each year. The policy also recommends the adoption of a pre- and post-grant opposition procedure. This will allow all interested parties to challenge patents without having to engage in expensive litigation. The policy does, however, acknowledge that the adoption of an examination system would require a vast array of skilled persons and that South Africa may not have the capacity to implement such a system. The policy suggests the use of the resources and staff of universities and research institutions in the examination process.

The recommendation of an examination system was heralded by activist groups such as the TAC and MSF, who lobbied for the adoption and implementation of a patent examination system for all pharmaceutical patent applications as well as for the strengthening of patent requirements to prevent “evergreening”. Evergreening refers to making small changes to an existing drug which is about to reach the end of its term for patent protection, in order to gain a new patent. The policy addresses these concerns through the recommendation of an examination system. This, it is believed, will result in “stronger” patents being granted, as they have undergone examination and will lead to less patents being granted in the pharmaceutical industry which may prevent generic medicines from being produced.

While the policy is not always clear, it does set out some objectives which give an indication of where IP may be heading in the future. The policy reads much like a wish list and it will certainly be interesting to see how the laws will be adapted to fulfill these objectives.

Hillary Brennan – Practitioner
hillary@mrf.co.za