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UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG

EXAMINATIONS: JUNE 2007


SUBJECT, COURSE AND CODE:

INTELLECTUAL PROPERTY LAW


(LAWS4IP)

DURATION:
2 HOURS
TOTAL MARKS:
75
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External Examiner:
Internal Examiners:

Ms S Driver
Prof T Woker
Mr A Louw
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PLEASE NOTE: This question paper consists of NINE (9) pages
Please see that you have them all
STUDENTS ARE REQUESTED, IN THEIR OWN INTERESTS, TO WRITE LEGIBLY

SECTION A
Students are required to answer the questions in section A on the question paper.
Students should refer to relevant statutes and decided cases.
1.

Five Roses is a brand of tea produced by X Co. The tea is sold in bright red boxes with a
picture of 5 roses on the front and back of the box. Jo Tee also decides to produce tea
which he calls the Flower Tea. He packages this tea in a bright red box with a bunch of
white flowers on the front only. X Co believes that he is trying to make consumers
believe that his tea is actually Five Roses and it wants Jo Tee to change his packaging.
Briefly explain to X Co what they will have to prove if they are to succeed in convincing
a court that the packaging must be changed.

(4)

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG,


EXAMINATIONS: JUNE 2007
SUBJECT: INTELLECTUAL PROPERTY LAW
PAGE: 2.
2.

Sally Ladi is the owner of a Christian Bookshop called Ladis. She has registered
Ladis as a trade mark and the business has been in operation for well over 50 years. She
has discovered that Simon has opened a shop a few blocks away that specialises in risque
ladies underwear. She has heard that Simon uses the name Sexy Ladis for his range of
underwear. Sally is very offended as she believes that he is mocking her and that this
shop will have a negative effect on her business. Sally has been informed that as both
parties are involved in completely separate businesses and that as there is no prospect of
consumers becoming confused about which party is selling what, there is nothing she can
do. Sally is however, determined to stop Simon from using this name. Briefly set out
what she will have to prove if she is to be successful.

(6)

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG,


EXAMINATIONS: JUNE 2007
SUBJECT: INTELLECTUAL PROPERTY LAW
PAGE: 3.
3

Briefly discuss the moral rights of the author of a copyright-protected work. Your answer
must explain what moral rights are and whether they derive from the common law or
statute, and must specifically explain the two main elements of authorship protected by
these rights.

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[4]

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG,


EXAMINATIONS: JUNE 2007
SUBJECT: INTELLECTUAL PROPERTY LAW
PAGE: 4.
4

Zaza, an Iraqi citizen who is on holiday in South Africa for two months, makes a short
documentary film about the trade in drugs on Durbans beachfront, which he hopes to sell
to the SABC or the BBC for a lot of money. When his ex-girlfriend Jane steals his tape of
the film and broadcasts it on a campus TV station, he immediately institutes a copyright
infringement claim against her. Jane claims that no copyright exists in the work as Zaza is
not a qualified person in terms of the Copyright Act 98 of 1978, namely he is not a
South African citizen and Iraq is not a signatory to the Berne Convention. What would
your advice to Zaza be? Can copyright exist in the film on any other basis? Explain your
answer with reference to the relevant provisions of the Act.

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[3]

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG,


EXAMINATIONS: JUNE 2007
SUBJECT: INTELLECTUAL PROPERTY LAW
PAGE: 5.
5

Briefly discuss the requirement contained in sec. 2 of the Copyright Act that a work must
be original in order to qualify for copyright protection. You must refer to the standard as
set out in the relevant case law. Also briefly discuss the nature of the test applied by the
courts in determining whether a work is sufficiently original for this purpose, as
formulated by the Appellate Division in the case of Waylite Diary CC v First National
Bank Ltd 1995 (1) SA 645 (A).

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[3]

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG,


EXAMINATIONS: JUNE 2007
SUBJECT: INTELLECTUAL PROPERTY LAW
PAGE: 6.
6

Thabo has used a painting of a Samurai warrior on horseback, which he painted ten years
ago while in art school, to produce a small statue. Thabo approaches a friend who owns a
factory that produces metalwork, and they start producing small metal versions of this
statue, which sell exceptionally well in home dcor shops in the Western Cape as
decorative coffee-table pieces. Richard is very impressed with the work and feels there is
a market for it in Johannesburg. Unknown to Thabo, Richard uses one of the small metal
statues as a model and produces hundreds of copies, which he sells in furniture shops in
Johannesburg. When Thabo finds out about this he immediately institutes a copyright
infringement claim against Richard, claiming that Richard has infringed the copyright in
the artistic work. Advise Richard as to whether he would be liable on these facts, with
reference to the applicability of any relevant exceptions to infringement contained in the
Copyright Act 98 of 1978.
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[5]
TOTAL 25

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG,


EXAMINATIONS: JUNE 2007
SUBJECT: INTELLECTUAL PROPERTY LAW
PAGE: 7.
SECTION B

Students are required to answer all questions in the answer book provided.
1.

Penny finished her studies and qualified as an educator and child psychologist. She then
spent three years travelling throughout Europe and the United States of America (USA).
Whilst travelling in the USA she came across a childrens toyshop in California called
Edutoys where she worked for six months. On her return to South Africa, Penny decided
to open her own childrens toyshop. She called this shop Edutoys. After a year, she
registered the trade marks Edutoys, Edukids and Edustores. Over the years, Penny
established a fairly successful, albeit small business, for herself. In this period, the
entrepreneurs in California decided to franchise their business. The USA business has
become very popular and Penny is frequently asked whether her business has any
connection to the one in America. Although she openly admits that she obtained all her
ideas from the American company she assures all her customers that she is not in any
way connected to the, fast becoming international, franchise network. Penny was also
one of the first entrepreneurs in South Africa to recognise the power of the Internet and
so she registered her trade mark as the domain name edutoys. She has managed to
establish a very successful sideline selling toys throughout South Africa via the Internet.
In December 2006, Penny received a lawyers letter from attorneys acting on behalf of
Edutoys USA. Edutoys USA is claiming that it is the originator of the trade marks
Edutoys, Edustores and Edukids, that it holds numerous registrations throughout the
world, that although their trade marks are not registered in South Africa, their trade marks
are well known in South Africa and that she must immediately stop using her registered
trade marks and relinquish her domain name otherwise further legal action will be taken
against her.
Advise Penny. In the course of your answer, discuss how the date on which Penny
registered her trade marks would make a difference to the advice that you give her.
(25)

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG,


EXAMINATIONS: JUNE 2007
SUBJECT: INTELLECTUAL PROPERTY LAW
PAGE: 8.
2

Critically discuss the following statement:


There can be no copyright in ideas.
Your answer must refer to the approach to this issue of the South African Copyright Act
98 of 1978, as well as criticism of this statement as constituting a general rule. You must
also refer (with reference to your prescribed readings) to the relevance of the issue of
whether ideas as such can be protected by copyright in the context of the modern
entertainment industry.
[Your answer must not exceed 3 pages]
[8]

Frank has been working for the Sunday Times newspaper as a reporter for more than 20
years. He writes a report on a new political thriller by author Jack White, entitled Three
days on a train. Franks article concentrates on public protests that followed the
publication of Whites book, when a mob of angry protestors picketed book shops,
complaining that the book contains hate speech against a certain religious group by
labeling members as terrorists. In Franks newspaper report, he makes extensive use of
passages in Three Days to illustrate the protestors objections.
Jack White sues Frank for defamation on the basis of the articles tone, and for copyright
infringement based upon the use of passages from the book.
You are asked to advise Frank as to possible defences to the copyright infringement
claim. Discuss the following:

3.1

Does Franks use of the passages in the article fall within a recognized exception to
copyright infringement in terms of the Copyright Act 98 of 1978? If so, discuss the
requirements and whether Frank would avoid liability on these facts. Your advice must
also refer to possible guidance from the USA and Australia in determining whether the
conduct of a respondent in Franks position would be deemed to be justifiable as an
exception to copyright infringement.
[Your answer to this section should not exceed 3 pages]
[8]

3.2

In the course of the court proceedings Frank decides to write an autobiographical book
about his ordeal, and to include the article in the book. The Sunday Times objects to this
and claims that copyright in the article vests in the newspaper. Discuss Franks legal
position with reference to the applicable provisions of the Copyright Act 98 of 1978.
[5]
continued

UNIVERSITY OF KWAZULU-NATAL, PIETERMARITZBURG,


EXAMINATIONS: JUNE 2007
SUBJECT: INTELLECTUAL PROPERTY LAW
PAGE: 9.
Question 3 continued
3.3

[For purposes of this question assume that copyright in Franks article in fact
vests in the Sunday Times.] The Sunday Times is approached by a movie producer
who wants to make a film based on the article. The movie is made and (in the
tradition of films like All the Presidents Men) tells the story of Franks
investigation into the events around the Three Days book and the public protests.
In order to spice up the film, Frank is falsely depicted in the movie as a lazy and
dishonest journalist who has lied and cheated and generally deceived sources in
order to obtain material to write the article. Does Frank have any legal right in
terms of the Copyright Act to stop the film from being distributed and shown in
theaters? Explain your answer briefly.
[3]

3.4

Assuming that all the requirements for copyright to exist were satisfied, at what
moment did copyright in Jack Whites book arise (in terms of the Copyright Act)?
[1]

Total section B: 50