As I said in my previous blog entry, the Telkom/Helkom dispute has been settled.
Its interesting to look at the copyright issue and compare;
the Telkom image:
which constitutes an artistic work as defined in section 1 of the
South African Copyright Act 98 of 1978:
" 'artistic work' means, irrespective of the artistic quality thereof-
(a) paintings, sculptures, drawings, engravings and photographs;"
and the Hellkom logo
which also constitutes an artistic work.
It might also be argued that it is an adaptation of the
Telkom logo.
Subsection 1 (1) (c) of the Copyright Act states that adaptation in relation to:
" (c) an artistic work, includes a transformation of the work in such a manner that the original
or substantial features thereof remain recognizable"
Does this mean that it is not authorised?
Section 12 of the Copyright Act sets out acts which do not
require authorisation:
"12 General exceptions from protection of literary and musical works
(1) Copyright shall not be infringed by any fair dealing with a literary or musical work-
(b) for the purposes of criticism or review of that work or of another work; or
(c) for the purpose of reporting current events-
(i) in a newspaper, magazine or similar periodical; or
(ii) by means of broadcasting or in a cinematograph film "
while section 14 (4) applies this to artistic works.
Does the section authorise this adaptation?
The section must be read through the prism of section 16 of the Bill of Rights:
Freedom of Expression
1. Everyone has the right to freedom of expression, which includes-
1. freedom of the press and other media;
2. freedom to receive or impart information or ideas;
3. freedom of artistic creativity; and
4. academic freedom and freedom of scientific research.
2. The right in subsection (1) does not extend to-
1. propaganda for war;
2. incitement of imminent violence; or
3. advocacy of hatred that is based on race, ethnicity, gender
or religion, and that constitutes incitement to cause harm.
I see a number of alternatives:
One alternative is that fair dealing is a broad concept
and the instances listed in the section are not a
numerus clausus so fair dealing can include
use in parody.
Possibly the categories listed in the section are a closed list,
however each of the categories must be viewed broadly,
and the use by Helkom falls into either criticism of the first work,
or commenting on public events.
What does criticism mean in this context? A narrow reading
would be critical review of a work, in an art journal or
the like. This seems strange however since the range of works
covered by the definition of artistic work is very much larger
than the range of works that could be critically reviewed.
In the case of a logo criticism can hardly focus exclusively
on the artist's use of colour, form and so on since there
really isn't much to discuss, but must, because of the
symbolic nature of a logo, extend to what the logo symbolises.
Criticism of the symbolic function of a logo includes parodiac
use.
Another alternative is that freedom of expression provides
a defense that is not located in the statute but arises
directly from the constitutional right. If this defence
exists it will require some elaboration from a court
in future.