South Africa’s strangest court ruling about video games

Video games in South Africa enjoy protection not only as computer programs but also as “cinematographic films” thanks to a 1996 ruling in the Supreme Court of Appeal.

Golden China TV Game Centre and others brought the appeal against Nintendo specifically to address the issue of games being classified as films.

Many gamers might remember the flood of Nintendo Family Computer (Famicom) knock-offs in South Africa during the ’90s, with Golden China being a prominent “Famiclone”.

While Nintendo launched the Famicom in 1983, the gaming console only gained traction among Western audiences in the mid to late ’80s.

Nintendo launched a version of the console specific for the North American market called the Nintendo Entertainment System in 1985, while Europe started getting the Famicom in 1986.

The Famicom introduced players to games like Super Mario Bros., Metroid, and The Legend of Zelda, along with their now legendary characters.

It was also the home to the most iconic version of Tetris, which has experienced a resurgence in recent years.

South Africa did not have an official Nintendo distributor until the turn of the century. Importers brought in the Famicom, various Famiclones, and game cartridges directly to sell to the local market.

Our first local Nintendo distributor was a company called Futronic, which obtained the rights to sell the company’s consoles and games around the launch of the Nintendo GameCube in 2001. Futronic gave up the licence in 2007, after which local Apple distributor Core Group acquired the rights.

While it was easy enough to distinguish between a real Famicom and a clone, it was often difficult to discern which cartridges were the real McCoy, and which were knock-offs.

In 1995, Nintendo launched legal action against Golden China TV Game Centre and others to enforce its copyright in South Africa.

Curiously, Nintendo filed its legal papers three days before an amendment to the Copyright Act came into operation that would recognise computer programs as their own category of copyrightable product.

Without that provision in the law, Nintendo argued that games qualify as “cinematographic films” — and won.

South Africa’s longest-serving judge, Willie Hartzenberg, presided over the case.

Golden China appealed the ruling — but only to challenge the classification of games as films under the amended Copyright Act.

A unanimous panel of five Supreme Court judges dismissed the appeal with costs.

The ruling was surprising because the amendments to the Copyright Act specifically excluded computer programs from the definition of “cinematograph film”.

It states: “cinematograph film means any fixation or storage by any means whatsoever…, signals or a sequence of images capable… of being seen as a moving picture and of reproduction, and includes the sounds embodied in a sound track associated with the film, but shall not include a computer program.”

However, the Supreme Court found that the exclusion does not apply to video games.

“It was common cause that the video games are not computer programs although computer programs were used during their creation,” the ruling stated.

Video games enjoying the protection of multiple definitions of copyrightable works is not unusual.

For example, different parts of a song might fall under separate copyright definitions.

The lyrics might be classified as a literary work if they can be argued to be poems or parts of a script.

The actual score is classified as a musical work, which may also encapsulate the lyrics if they are not a literary work.

Then, when a musical work is stored as a sound recording, this is protected by a separate definition under the Copyright Act.

This has led to bizarre quirks that have rendered parts of the law unenforceable as technology developed.

Most famously, converting the songs on a CD you legally own to MP3s is technically illegal.

Video games being classified as films gives rise to similar idiosyncrasies, such as potentially making it illegal to take screenshots.

This is because the Copyright Act regards taking still photographs of a film as “copying”.

The law also disallows “performing” computer programs or displaying films in public, potentially making Twitch streaming illegal without the copyright owner’s express permission.

A controversial amendment to the Copyright Act hopes to introduce the United States’ concept of fair use that would hopefully address these kinds of issues where technology outpaces legislation.

However, Cliffe Dekker Hofmeyr senior consultant and media law specialist Emma Kingdon said the amendment had attracted significant criticism.

Kingdon explained that South Africa’s Copyright Act is based on UK legislation and decades worth of case law interpreting the concept of ‘fair dealing’ to determine whether the use of copyrighted material without a license is permissible.

“We will now have to work with the concept of ‘fair use’ adopted by the US,” she said.

“Similar to the existing ‘fair dealing’, this term is not defined exhaustively but is instead used with an inclusive list of examples.”

Kingdon said this means we will still have to look at case law to decide what is permissible, but now with reference to how the US has interpreted this phrase.

“US law is entirely foreign to our jurisprudence,” she said.

Source: MyBroadband