A comparative analysis of the doctrine of originality in the copyright law of South Africa and the United States of America

Abstract: Copyright law concerns itself with the protection of expressions of ideas. This includes literary and artistic works, which refer to books, lectures, dramatic works, musical compositions, drawings, photographic works, and illustrations, among other examples. Copyright law is not concerned with protecting ideas themselves, but with protecting the manifestations of those ideas. Copyright affords the author, or owner of the work, economic and moral rights. Economic rights ensure that the author or owner has the ability to derive financial rewards from the work, while moral rights offer the author or owner the ability to preserve and protect their connection to the work.1 According to the Berne Convention2 (“the Convention”) for a work to subsist in copyright, the work needs to be original and must be in a material form3 . The Convention, however, does not define or outline the criteria for “originality”. The Convention is an international copyright agreement first signed in 1886 in Switzerland. It mandates equal treatment of copyrighted work by signatory countries (signatories) of the Convention, known as the Berne Union. It requires signatory-member countries to recognise copyrighted literary or artistic works as they recognise their national copyrights. The signatories of the Convention have been consistent in applying the requirement that a work must be in a material form for it to gain copyright protection. However, because of the lack of guidance and predetermined criteria regarding what is deemed as original, there is no consistency or uniformity in the approach used to determine what is original. The characteristic of originality is a vital component for copyright to subsist in a work. In this dissertation, the researcher will inquire into American (United States of America) and South African courts, and how they have decided on matters dealing with originality. This dissertation will examine the standards that each...LL.M. (Intellectual Property Law