Registration of Copyright in Video Games - Volunteer Game Required
Hi Everyone
I am an intellectual property attorney currently practicing in Cape Town.
My areas of expertise include trade mark law, copyright law, anti-piracy and anti-counterfeiting.
I am exploring the possibility of registering copyright in video games in South Africa.
If you have a completed video game that has been been made available to the public and would like to participate in this test case (at no cost) please feel free to contact me.
Best regards
I am an intellectual property attorney currently practicing in Cape Town.
My areas of expertise include trade mark law, copyright law, anti-piracy and anti-counterfeiting.
I am exploring the possibility of registering copyright in video games in South Africa.
If you have a completed video game that has been been made available to the public and would like to participate in this test case (at no cost) please feel free to contact me.
Best regards
Comments
I'm not sure if you're aware of IESA, and the efforts it's putting into local legislation, but if not, you should get in contact: http://www.iesa.org.za/
Can you maybe elaborate a bit on what you're looking to do with "registering" copyright? My understanding (not a lawyer) is that copyright is an automatic thing that exists from product creation without any need to register it. Why would someone want to go through the effort and cost to try get that registered? I'm aware that there is some legal benefit to registering copyright in the US for US works, but that it's also a murky area and not 100% clear that it's needed. I don't believe this is a South African requirement tho
Thank you for the reference to IESA. I will definitely get in contact.
Sorry for the long post that follows!
Your comments are most appreciated. The points you raise are all valid. Copyright protection in South Africa is automatic and no formal registration procedure is required. Provided the minimum requirements set in the Copyright Act are met, your work will receive protection under the Act.
You may be aware of the difficulties of enforcing copyright in South Africa in terms of the high evidentiary burden placed on the shoulders of the plaintiff (and the soaring costs that go with it). This is compounded when dealing with complex works of authorship, like cinematograph films (movies) and video games. It is for this very reason that the Registration of Copyright in Cinematographic Films Act was enacted in 1977. The Act was implemented in an attempt to aid copyright holders in the film industry and to provide them with an extra mechanism of copyright protection. Registration does not give rise to copyright protection (which already exists). The primary purpose of registration is to enable the existence of copyright and the rights under copyright in a film to be easily and efficiently provided in court proceedings and to simplify the proof of ownership of copyright in a film (and to reduce costs in doing so).
In copyright infringement cases dealing with unregistered films, the facts necessary to establish copyright subsistence and ownership need to be proved according to the ordinary principles of the law of evidence. The facts relating to subsistence of copyright would need to be proved by obtaining admissible evidence from individuals who have personal knowledge of such facts. Experience has shown that there may be considerable practical difficulties in adducing this evidence. These problems may simply be overcome by providing these facts in the statement of case which supports the application for registration of copyright. In this way, registration of copyright in a film provides a short cut in the evidentiary burden, and this in turn may reduce the overall cost of enforcing copyright in a film.
So what does this have to do with video games? You may be aware of the 1997 Supreme Court of Appeal judgment in Golden China TV Game Centre and Others v Nintendo Co Ltd (55/94) [1996] ZASCA 103. Video games are not recognised as an independent category of "work" available for protection under the Copyright Act. It therefore fell to be determined whether video games are classified as computer programs or as cinematograph films. The court held that for the purposes of copyright law in South Africa, video games are protected as cinematograph films.
So it stands to reason that an application may be made to the CIPC for registration of a video game under the Registration of Cinematograph Films Act. My contacts in the IP enforcement division at CIPC are all of the view that this is indeed possible. In fact, at the Western Cape Anti Counterfeiting stakeholders meeting earlier this year, it was stressed that this form of protection is available and should be taken advantage of. I have also discussed this issue at length with Professor Owen Dean who wholly supports the idea that it can be done. All that is needed is a suitable test case.
The benefits associated with obtaining a registration in a video game are the same as those received for registered cinematograph films. Once registered, a certificate issued by the Registrar of Copyright constitutes evidence which on face value is evidence of the validity of the registration and of the title of the person so recorded as the copyright owner. In copyright infringement proceedings, all the facts that are required to prove the subsistence of copyright can be simply established by simply handing over the certificate evidencing registration. The costs, trouble, and logistical challenges of obtaining evidence from a large number of people can simply be avoided by obtaining the certificate. The fact that a video game is registered makes it a relatively simple matter to bring infringement proceedings based upon the infringement of the copyright in that video game.
Even if infringement proceedings are not followed all the way through to a High Court hearing, having a registration certificate to attach to a letter of demand to ward off infringers shows that you mean business and that you take your copyright protection seriously. It is also very difficult to refute the validity of the certificate of registration and the information it contains.
Having looked through the advertisements of cinematograph film applications in the patent journal dating back to at least 2010, there have been no applications (as far as I can tell) for registration of copyright in a video game. I think the time is ripe for a test case and get some clarity on whether this procedure is in fact available for video game proprietors in South Africa.
I'd appreciate any thoughts or feedback from anyone that has more information on this topic.