Published Date: May 4, 2020

With day (who can remember) of lockdown arriving, your phone chirps excitedly, reporting “your homework” which has arrived for next week, ready to be downloaded and printed in advance.  Yes, best to be prepared!

The writer is sure that every parent out there will now be able to update their LinkedIn profile and more specifically their skill set, to include educator.   Being directly involved and particularly interested in the protection of IP, the first thought that came to mind, was copyright.  Well, that is actually a lie, the first thought that did come to mind was “how am I going to do this”.  Let us not digress.  The writer is fairly certain that the documents being diligently transmitted for home execution, do not constitute original works and most likely, were copied from a textbook at hand.

In addition to being worried that you have not correctly conveyed what should be identified as nouns and adverbs in a sentence, parents should not have the added stress of wondering whether they have been breaking the law.  The scenario the writer has in mind is somewhat different to the pdf versions of famous South African magazines making the rounds.  It must be mentioned that these pdf documents were quickly retracted by the unknowing senders when, most likely, someone in the IP field was called in haste to assist.

What the writer wishes to reassure parents/educators about, is the transmission of copied parts of textbooks, for purposes of completing schoolwork at home.  All things being equal, the textbooks being copied are most likely protected and copyright still subsists in the various works making up the textbook.  The reproduction of a copyright work (read “the making of a copy”) is included in the list of acts covered by the current South African Copyright Act, which only the owner of copyright is entitled, exclusively, to do or authorise anyone else to do.  So, if you make a copy of a copyright protected work or a substantial part of it, this should constitute infringement.   By the way, storing the homework you receive from school and actually printing a copy, both constitute making a copy of the work.  Also, a substantial part of the work, does not mean the entire textbook.

Before you angrily dial the relevant teacher who has now made this your problem, fortunately, our Copyright Act also provides for some exceptions in respect of the reproduction of copyright work.  Our Act states that copyright shall not be infringed if a literary work is used solely, and then only to the extent reasonably necessary, for purposes of private study by, or the personal or private use of, the person using the work.  Being in lockdown, no doubt private study is all that is taking place.  Ok, so that covers your copy at home.  What about the quaranteacher (cute new name being thrown around), sending the work home?

Our Copyright Act further provides that the copyright in a literary work shall not be infringed by using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching – provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work.  Ok, so arguably, most scenarios would be covered … if the teacher remembers to also include the name of the source, as well as the name of the author. The writer highly doubts that semantics will play a big role in the current climate, but hey, we are busy with schooling and rules are rules.

Fortunately, the Regulations to our Copyright Act in fact give teachers a free pass in these circumstances, as multiple copies (not exceeding one copy per pupil per course) may be made by or for a teacher for class-room use or discussion, provided that copies may not be used to create, replace or be used as a substitute for the purchase of books.  For now, the “class-room” lives in a virtual space but we all know that lockdown will end and it is certainly foreseeable that the textbooks being copied, were previously purchased for conventional schooling (how we long for those days).

Phew, looks like this is one item to be ticked off the list.  Happy educating everyone!

Jani Cronjé
Partner | Trade Mark Attorney