Abstract

The Copyright Act 98 of 1978 does not explicitly say whether ideas can be protected by copyright or not. Over the years and in line with the internationally accepted idea-expression dichotomy, South African courts have frequently recognised copyright in both “literary” and “functional” ideas contained in literary works. Examples of ideas protected in literary works of a more “literary” nature include a case where the selection and combination of characters and events in a book about the Zimbabwean War of Independence were protected. Numbering systems are an example of functional ideas contained in literary works that were found to be protected by copyright in South Africa. However, the proposed new section 2A(1)(a) of the Copyright Amendment Bill (CAB) explicitly states that copyright can exist only in expressions and not in ideas, procedures, methods of operation or mathematical concepts. As for conventional literary works, section 2A(1)(a) can be said to leave the copyright protection that eg well developed storylines enjoy untouched. On the other hand, with regard to functional ideas in literary works where the literary work itself is not excluded from copyright protection, the new section brings a change. This development is discussed with reference to the facts and findings of the recent judgment of Sibanyoni v Executive Mayor of Nkangala District Municipality ((3542/2020) 2022 ZAMPMHC 24 (11 November 2022)), where one of the questions was whether the risk fund and mobile clinic ideas contained in a trust deed could enjoy copyright protection. Although the court’s reasons for non-idea protection are not entirely accurate, its finding that the ideas are not protected is in line with South African copyright law as it stands (the ideas are not or were not proven to be special), and in line with the CAB (functional ideas cannot enjoy protection). The point is that, while s 2A(1)(a) will not keep special literary ideas from being protected, functional ideas such as numbering systems shall be excluded from copyright protection altogether.