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CHAPTER III SUI GENERIS RIGHT
Article 7 Object of protection
Member states shall provide for a right for the maker of a database which shows that there has been qualitively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.
The right provided for in pararaph 1 shall apply irrespective of the eligibility of that database for protection by copyright or by other rights. Moreover, it shall apply irrespective of eligibility of the contents of that database for protection by copyright or by other rights. Protection of databases under the right provided for in paragraph 1 shall be without prejudice to rights existing in respect of their contents.
The object of this sui generis right is to ensure protection of any investment in obtaining, verifying or presenting the contents of a database for the limited duration of the right (15 years)335; such investment may consist in the development of financial resources and/or the expending of time, effort and energy.336 The protection provided relates to databases in which works, data or materials have been arranged systematically or methodically, where it is not necessary for those materials to have been physically stored in an organised manner337 (for example an alphabetic listing of names in a telephone directory). Works protected by copyright and subject matter protected by related rights, which are incorporated into a database, nevertheless remain protected by the respective exclusive rights and may not be incorporated into, or extracted from, the database without the permission of the right holder or his successor in title.338
The drafters of the directive provide an example of the working of copyright protection and the sui generis right:
Whereas, as a rule, the compilation of several recordings of musical performances on a CD does not come within the scope of this Directive, both because, as a compilation, it does not meet the conditions for copyright protection and because it does not represent a substantial enough investment to be eligible under the sui generis right.339
In the light of the directive itself, together with the reasoning behind its adoption, it may be said that, since “originality” is the standard for copyright protection, “substantial investment of finances and/or time, effort and energy in either the obtaining, verification or presentation of the contents” is the standard required for a database to be protected under the sui generis right.340 The sui generis right thus protects the “sweat of the brow”, the “industrious collection” by the author of a database, which is not protected by copyright. The author of a database is defined by Article 4(1) as the natural person or group of natural persons who created the base and is described in the reasons for adopting the Directive as “the person who takes the initiative and the risk of investing”.341
Norway
Unlike Finland, Denmark and Sweden, Norway is not a member state of the EU. However, in accordance with their respective bilateral agreements with the EU, neighbouring countries such as Norway and Iceland have to implement Directive 96/9/EC.342
Although Powell points out that the sui generis right provided by Directive 96/9/EC, which protects unoriginal databases, bears many similarities to the publisher’s right in the published edition under UK law343, it was inspired by the so-called “Nordic Catalogue Rule”.344 The (pre-Directive 96/9/EU) copyright acts of Denmark, Finland, Iceland, Norway and Sweden all contain provisions expressly protecting unoriginal compilations of data such as catalogues, tables and similar compilations, provided they comprise a large number of items.345
The Nordic Catalogue Rule dates back to the 1940s. In a 1949 joint Nordic legislative proposal it formed part of a text prohibiting the imitation of “forms, programmes, catalogues and similar works that are not protected by copyright/authors’ rights”. In somewhat varied form and extent, Norway, Denmark, Sweden and Finland brought the rule into their Copyright Acts during 1960/61. Iceland had its own rule. At that stage the protection concerned “a catalogue, a table or another similar product in which a large number of information items have been compiled”.346
Karnell gives two reasons for the development of the catalogue rule. The most basic reason was to provide protection for substantial investment of capital and amounts of working effort in collecting and arranging catalogue materials. From case law the conclusion may be drawn that the easier the compilation, the more investment in capital and/or labour will be required to qualify.
“The catalogue rule has always been a competition law rule in copyright disguise”.347 The fact that Sweden (Karnell’s home) did not have any general unfair competition clause may have contributed to the competition law character of the rule. Karnell does acknowledge, however, that other legislative measures and related court decisions have tended to close the gap.
The second reason is that “it was feared that the courts would unduly lower the bar for the protection of literary and artistic works so as to accommodate the needs for protection of catalogue products”, i.e. protection was given to a catalogue of ironware and a list of Danish family names by the Swedish and Danish courts. It was widely considered that such works did not reach the required level of originality and the catalogue rule put an end to such lowering of the standard of creativeness. “The prevailing idea at the time when the catalogue rule was conceived and started to develop towards the EC directive was to keep copyright bright and shiny for literature and art and to direct other matter to separate kinds of protection.”348
Conclusion
It is concluded that mere labour is indeed protected in all nine jurisdictions discussed above, although not necessarily through copyright law. In the Commonwealth tradition own, relevant labour is protected through copyright law, subject to competion law. In the United States of America and Europe sweat of the brow is not protected through copyright law – creativity is required – but this gap is filled by broad actions such as those relating to unlawful competition.
Worldwide attention is being given to the development of sui generis protection of the time, money and labour invested in databases. The sui generis approach meets the need for sweat of the brow protection, without compromising the principles of artistic theory that underlie copyright law. However, as Lipton points out, the creation of such sui generis protection for databases is not without its growing pains. It may even be preferable not to create such new intellectual property protection at all.349
The EU Database Directive and the US Bills (with the possible exception of the most recent one) have been criticised for two reasons. Firstly, they are modelled too closely on copyright law. Secondly, “database” is defined too broadly, with much emphasis on that which is not permitted. Such exceptions fail to compensate for the fact that the prohibited conduct is ill defined in the first place.350
The above criticism of the developing sui generis database protection supports the conclusion ultimately reached by this research. Pinpointing the type of subject matter and the copyright (and/or other legal) rules that govern that specific type of work is crucial in the development of the concept of originality and copyright law in general.
“Meritorious distinctiveness”
Section 2 requirements for copyright protection
Section 2 of the Act sets four different requirements for copyright protection. They are:
- material form (fixation)
- work
- catégories of works protected
- originality
These requirements are now discussed seriatum.
i) Material form (fixation)
Section 2(2) provides that a work, except a broadcast or programme-carrying signal, is not eligible for copyright protection unless the work has been written down, recorded, represented in digital data or signals or otherwise reduced to material form. There are basically two schools of thought on the role of the material form requirement.
On the one hand there is the view that the true legal object of copyright lies in the idea rather that the expression of that idea.351 Copeling submits that the embodiment of the idea must result in its communication to the mind of some interested party, not necessarily in a physical form such as writing.352 It follows that, if communication to the mind of an outside party can be proven, then the purpose of the fixation requirement is met and copyright is established.
On the other hand there are those who view fixation as an integral part of the object of copyright. Dean describes the object of copyright protection as the “material form of expression of the idea”.353 Laddie, Prescott & Vitoria regard the ideas, thoughts and facts existing in a man’s brain as the object of protection, on condition that they have been reduced to material form.354
Copinger & Skone James strike a compromise between the above two schools of thought. In line with Copeling’s views, Copinger & Skone James acknowledge that the reasons for the fixation principle are practical. It serves to provide certainty on what the subject matter is, limits the monopoly and defines the moment when the work comes into existence. However, in line with Dean and Laddie, Prescott & Vitoria, Copinger & Skone James do not take the further step that Copeling does of regarding the fixation requirement as being overridable.355
The view of Copinger & Skone James is to be preferred. It is submitted that the object of the legislature is to grant the author copyright in his ideas only in so far as those ideas are reduced to material form. An author who wishes to protect the fruits of his mind need only take the simple and inexpensive step of fixing them in material form. Interpreting section 2(2) in a wider sense so as also to protect ideas communicated to others in a non-material way would unjustly benefit “authors” to the detriment of the free flow of information in society. Such a wide interpretation is especially not to be recommended within the prevailing Third Wave culture (see 4.3.2.2). Certain exceptions to the rule, such as the protection of broadcasts and programme-carrying signals, are, however, justifiable.
ii) Work
“Work” is defined in section 1 as “a work contemplated in section 2”. As Dean explains, the definition was inserted into the Act in 1992 in order to clarify and emphasise that only works or categories of works specified in section 2 of the Act are eligible for copyright.356 Garnett, James & Davies explain that fixation and the requirement relating to the form of a work are definitely to be distinguished from one another.357 Although work may not qualify as a requirement for copyright protection to the same extent that material form does, the “work requirement” has an important role to play in its own right.
At the onset of a copyright enquiry it must first be established that one is dealing with a “work”: that the subject matter in question has sufficient substance to warrant being the subject of protection under the Act.358 The first role of the work requirement is thus to ensure that copyright is not awarded to subject matter of too commonplace a nature, which would place undue restrictions on others. Not being too commonplace is thus the test for qualifying as a “work”. In Waylite Diary CC v First National Bank Ltd 359 the Appellate Division found that the diary appointment pages in question were too commonplace to qualify as either artistic or literary works for purposes of the Act, and that it was therefore unnecessary to consider whether they were original.360
The second important role of the “work requirement” is the identification of what it is that copyright is claimed for. From the judgment of Van Schalkwyk J in the case of Insamcor (Pty) Ltd v Machinenfabriek Sidler Stalder AG t/a Sistag361 it is evident that the “work” copyright is claimed for must be not only identified in terms of the whole of which it forms part, but also pinpointed as finely as possible.362 This slots in perfectly with a hypertext view of the “work requirement” – seeing the “work” in which copyright is claimed as a node within a network of references. In the case of Insamcor the parts of the drawing are the specific nodes and the series the drawing belongs to is the neighbouring information network. The neighbouring network (the series) is where the court draws the identification line. The series, for its part, forms a node within the network of technical information, and technical information is a node within the ever-expanding information network as a whole
Dedication
Acknowledgements
Summary
Opsomming
Clarification of terms
List of tables.
Chapter 1 Introduction
1.1 Background to research problem
1.2 Problem statement, demarcation and methodology
1.3 Outline of remainder of thesis
Chapter 2 Legal requirements for originality
2.1 Introduction
2.1.1 Origins of originality requirement in South African law
2.2 Requirements for originality as formulated by South African legal writers
2.3 Requirements for originality as formulated by South African courts
2.3.1 Requirement of own skill and/or labour
2.3.1.1 Content
2.3.1.2 The meaning of skill and/or labour
2.3.1.3 “Creative spark” versus “sweat of the brow” (“industrious collection”)
2.3.1.4 “Meritorious distinctiveness”
2.3.2 Degree of own skill and/or labour required to render a work original
Chapter 3 Requirements for originality as formulated by littérateurs in the wake of plagiarism allegations in Afrikaans literature
3.1 Introduction
3.2 Klein Grys Telegramme van die Wêreld – DPM Botes (1969)
3.3 Die Metafoor in die Afrikaanse Taal en Literatuurwetenskap – J Verster (1975)
3.4 Paljas – Chris Barnard (1997)
3.4.1 “There is no copyright in ideas”
3.4.2 United States protection of works not fixed in any tangible medium of expression
3.5 Die Redding van Vuyo Stofile – Wilhelm du Plessis (1999)
3.6 Metronoom – Terblanche Jordaan (2001)
3.7 Ingrid Jonker – Beeld van ‘n Digterslewe – Petrovna Metelerkamp (2003)
3.8 Conclusion
Chapter 4 Postmodernism as a paradigm for determining originality in the 21st century
4.1 Originality: A historic and futuristic perspective
4.2 Postmodernism
4.3 Hypertext as an aspect of postmodernism and its influence on originality
4.4 Chaos as an aspect of postmodernism and its influence on originality
Chapter 5 Conclusions and recommendations
5.1 Summary and conclusions: originality
5.2 Protection of original “ideas” under appropriate circumstances
5.3 Problem statements and recommendations
Research methodology
Bibliography
End notes
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