copyright

Copyright in South Africa is conferred and regulated by the Copyright Act No. 98 of 1978 (the Act) which came into force on 1 January 1979. It has been amended several times since then.

what is copyright?

Copyright, broadly speaking, is the right given to the creator, author, or other person who may own the copyright of certain types of works, not to have that work copied (reproduced) without authorisation.

The types of works covered by copyright are works which may be heard or seen when in a suitable form, and are dealt with more fully below.

Copyright is property and may be sold, assigned or licensed for use by others.

Unlike most other forms of intellectual property, copyright exists automatically and does not have to be registered. In fact, other than in the case of cinematographic films, no registration procedure is available in South Africa.

what is protected by copyright?

Copyright may exist in the following types of works:

literary works

Such as novels, stories and poetical works; dramatic works, stage directions, cinematographic film, scenarios and broadcasting scripts; text books, treatises, histories, biographies, essays and articles; letters, reports and memoranda; instruction manuals and advertising literature; lectures, addresses and sermons; and written tables and compilations. Protection is not dependent on the literary quality, mode or form in which the work exists.

computer programs and software

A computer program is specifically provided for in the Copyright Act in consequence of an amendment which became effective in 1992.

A computer program is broadly defined as a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result. It does not therefore extend to documents, data, or compilations which are probably still protected as literary works.

artistic works

These generally include, irrespective of the artistic quality thereof: paintings, sculptures, drawings, engravings and photographs; works of architecture, being either buildings or models of buildings; technical and engineering drawings; or works of artistic craftsmanship.

musical works and cinematographic films

These are protected in any form, e.g. recorded on magnetic tape or photographic film, so that they can be seen as a moving picture. Soundtracks of cinematographic films are also protected.

sound recordings

These are also protected in any form, e.g. cassettes or other tapes, compact discs, records, or any other recording medium so that they can be reproduced in the form of sound.

radio and television broadcasts

These are protected whether they are transmitted by radio or cable, as are programme-carrying signals.

how does copyright come into existence?

From a practical point of view, probably the most important aspect associated with copyright is that where it exists, it does so automatically. Thus no registration is required or possible, as in the case of patents, designs and trade marks. Registration is, however, provided for in the case of cinematographic films (see below).

The requirements for copyright to exist concern the making of the work itself, the person who made the work, and publication of the work.
 
These are as follows:

originality

The work must be original. This means that it must have been the product of the creator’s or author’s original skill and effort, and should not be copied from another work. It does not matter that the "idea" behind the work was not the creator’s own idea or even that the work subsequently turns out to be the same as another work in existence at the time of creation, and of which the author had no knowledge. Originality basically requires that the work was the result of the creator’s own effort and does not mean novelty or inventiveness as is required in the case of patents.

material form

The work must be reduced to a material form. This simply means that the work must exist in a tangible form such as a document, magnetic recording, or other optically, mechanically, electronically or other readable form. Copyright cannot, therefore, exist in an idea.

qualified person or publication

Either the creator or author of the work must be a citizen, resident or domiciliary of South Africa or a legal body incorporated in South Africa (qualified person), or the work must have been first published, broadcast, or disseminated in South Africa.

international cooperation

Copyright also exists in South Africa in respect of works first published or created by persons who are citizens, residents or domiciliaries of, or in, foreign countries, which are members of an international arrangement called the Berne Convention.

the members of the Convention include:

Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Central African Republic, Denmark, Egypt, Germany, Finland, France, Great Britain, Greece, Holy See, Iceland, India, Israel, Italy, Japan, Lichtenstein, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Pakistan, Philippines, Poland, Portugal, Republic of Ireland, South Africa, Spain, Sweden, Switzerland, United States of America, Zaire and Zimbabwe.
(Please note that this list is not exhaustive.)

exclusion

Copyright will not subsist in a work which is immoral, obscene, libellous or irreligious.

who owns copyright?

Apart from a few important exceptions which are discussed below, the owner of the copyright in a work is generally the creator or author of the work.

Important exceptions to this general rule include:

• where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, a cinematographic film or a sound recording, and pays or agrees to pay for it in money or money’s worth, such person is, subject to certain provisions, the owner of any copyright subsisting in the work;
  
• where a work is made in the course of the creator’s or author’s employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work;
  
• in the case of a computer program the author and owner of the copyright is "the person who exercised control over the making of the computer program";
  
• where the work is made under the direction or control of the State or any international organisation prescribed under the Copyright Act, the State or that international organisation is the owner of any copyright subsisting in the work; and
  
• where the creator or author has assigned the copyright to another person.

how long does copyright last?

Different terms apply to different types of works; the main ones being as follows:

• literary, musical and artistic works (other than photographs) - 50 years from the end of the year in which the author of the work dies;
• computer programs - 50 years from the year in which legitimate copies were first made available to the public;
• published cinematographic films, sound recordings, radio and television broadcasts and other programme-carrying signals - 50 years from the end of the year in which the work was first published or broadcast (cinematographic films not published within 50 years of the year in which they were made - 50 years from the end of the year in which the film was made).

how is copyright enforced?

Copyright entitles the copyright owner to prevent the unauthorised copying (termed infringement) of the relevant work by others. There is no infringement unless actual copying takes place. Infringement usually takes place by the unauthorised reproduction or publishing of the relevant work, or a substantial part of it, in one way or another. In some cases (where the content of the work is more important than its actual form) infringement also takes place if an adaptation (modified form) of the work is made.

It is interesting to note that infringement of copyright not only entitles a copyright owner to sue in Court for an order preventing the unauthorised person from infringing the copyright, and also for damages, but it is also a criminal offence in cases where a person imports, sells, distributes, deals in, or offers for sale, infringing works which he knows to be infringements of the copyright.

Infringement which takes place by an unauthorised person actually copying or causing the copying of a work is commonly termed direct infringement. Infringement by a person importing, selling, distributing, or otherwise dealing in unauthorised goods that he knows were made by an unauthorised person is commonly termed indirect infringement.

which acts do not infringe on copyright?

Certain acts which fall within the broad scope of protection afforded by copyright are expressly permitted and therefore do not constitute an infringement of copyright.

Some of these acts are:

• the use of a literary or musical work for private study, criticism or review of that work; for the reporting of current events, or any publication, broadcast or sound or visual recording used for teaching purposes; provided that mention is made of the name of the author and the source of the extract, and the exception does not apply when the whole of the work, or a substantial part of it, is reproduced;
• reproducing a lecture or address or other similar work which has been delivered in public, if the reproduction is for information purposes; and
• official text books of a legislative, administrative or legal nature, speeches of a political nature or delivered in the course of legal proceedings, and news of the day that are mere items of press information.

It was formerly an infringement of copyright to copy a three-dimensional article of a primarily utilitarian nature and which had been made by an industrial process from drawings thereof in which copyright existed. This process was known as reverse engineering. This type of act is no longer an infringement of the copyright in the drawings. This does not mean that copying of such articles can now be freely carried out.

Great care should be taken before copying such articles as other provisions of the law may prevent it. The reader is advised to consult an intellectual property attorney, before copying any commercial article.

how is it known that copyright exists?

While it is not compulsory to mark works and reproductions thereof to the effect that copyright subsists, it is highly advisable to do so in order to avoid innocent copying by third parties who are ignorant of the existence of copyright.

Marking may generally be effected by using the international copyright symbol © followed by the name of the owner of the copyright and the year in which the copyright came into existence, e.g. © BOWMAN GILFILLAN INC. 2007

licenses

As indicated above, a copyright owner can grant a licence to one or more other persons to use the copyright on agreed terms. Where the licence is an exclusive licence (i.e. the copyright owner is also precluded from using the work), the licence must be in writing. An exclusive licensee is in very much the same position as the owner of the copyright and may take legal action in connection with the copyright.

the registration of copyright in cinematograph films act 62 of 1977

• The registration of a cinematograph film, as defined in the Act, is a means of facilitating proof of ownership in cases of copyright disputes. Such a registration obviates difficulties that may arise when it becomes necessary to prove the ownership of copyright, as well as the subsistence thereof.  
• The application for registration must be accompanied by a Statement of Case (certain information must be provided (including information as to the applicant, its address, proof of entitlement to apply, whether the film is in colour or black and white, the inclusion of trade marks, the category of the film, the story line, etc).
  
• After examination, the application is published for opposition purposes, and if no opposition is entered, the film is registered.
  
• In practice, application for registration is made not only for traditional motion (“Hollywood”) pictures, but also, for instance, in-house training films, or product promotion films.