The application of the Copyright Act, 1978, to works made prior to 1979

[摘要] Article 1 Section 8 Clause 8 of the Constitution of theUnited States of America empowers Congress to promote theprogress of science and useful arts, by securing for limitedtimes to authors and inventors the exclusive right to theirrespective writings and discoveries. This simple clausesums up in a few words the philosophy and underlying principlesof modern copyright law. Copyright law, like otherbranches of intellectual property law (i.e. the laws ofpatents, trade marks and designs), seeks to create a systemwhereby the creator of original works or intellectual propertyis afforded a qualified monopoly in the use orexploitation of his work in order, first, to compensate andreward him for the effort, creativity and talent expendedand utilized in the creation of his work, and secondly, toact as an incentive for him to use his talents and effortsto create more and better works or items of intellectualproperty. The qualified monopoly is limited in duration andafter the expiry of the term the work falls into the publicdomain and can be freely used and reproduced by others. Abalance is struck between the interests of the individualand the public interest. The rationale behind thisphilosophy is the establishment of a profit incentive forcreators of intellectual property. The effectiveness of theprofit motive is dependent upon the degree to which thecreator of the intellectual property is able to maintain andenforce his qualified monopoly. If the law is not effectivein enabling the creator of intellectual property to maintainand enforce his monopoly then the efficiency of the operationof the profit motive will be impaired. Consequently,the soundness and effectiveness of the law of copyright is a. significant factor in the promotion of the creation ofintellectual property and ultimately• in enriching our cultureand promoting our knowledge and well-being. Viewed froma different perspective, the purpose of copyright is toprevent one man from appropriating to himself what has beenproduced by the skill and labour of others1 .In broad terms, copyright may be described as the exclusiveright in relation to a work embodying intellectual property(i.e. the product of the intellect) to do or to authorizeothers to do certain acts in relation to that work, whichacts represent in the case of each type of work the mannersin which that work can be exploited for personal gain orprofit.Copyright is an immaterial property right. The subject ofthe right is a work of the intellect or spirit and thus anintangible. Copyright in a work is akin to ownership in atangible article. The following analysis of the essentialnature of copyright by Slomowitz AJ in Video Parktown North(Pty) Limited v Paramount Pictures Corporation is instructive: It seems to me that when he who harbours an idea, by dint of his imagination, skill or labour, or some orall of them, brings it into being in tactile, visible or audible form, capable thereby of being communicated to others as a meaningful conception or apprehension ofhis mind, a right of property in that idea immediatelycomes into existence. The proprietary interest in that object of knowledge is the ownership of it and iscalled 'copyright'. It might just as well be called 'ownership', but we have chosen to call it by another name, reserving 'ownership' as the appellation for the proprietary interest in corporeal things, by way of semantic, but not, as I see it, legal, distinction. Inthis sense, copyright has sometimes been called 'intellectual property', as it indeed is. Copyright subsists in the work of the intellect embodied in a material form which is a tangible article. The tangible or physical form of the work embodies two separate items ofproperty, i.e. the copyright in the work of the intellect and the ownership of the tangible article. Ownership of the two items of property must be distinguished and can vest indifferent persons. Transfer of the ownership of one of thei terns of property does not necessarily affect transfer ofthe ownership of the other item of property.

[发布机构] Stellenbosch University