Copyright is defined as the right that the Copyright Holder of an Original Work has to prohibit others from making unauthorised copies of such work. In other words, copyright confers on the owner of the copyright the right to prevent others from, inter alia, making or causing infringing copies or reproductions of the work to be made, making it available for the first time to the public, performing it in public, and in some cases, letting it or offering it for sale, without his or her consent.
Requirements for Copyright
- Originality
- Material must be presented in a tangible form
- Author must be acknowledged by SA law as a legal persona
Works eligible for copyright
In terms of section 2(1) of the Copyright Act, the following works, if they are original, are eligible for copyright:
- Literary Works
A literary work includes, irrespective of literary quality and in whatever mode or form expressed: Novels, stories and poetic works; dramatic works, stage directions, cinematograph film scenarios and broadcasting scripts; textbooks, treatises, histories, biographies, essays and articles; encyclopaedias and dictionaries; letters, reports and memoranda, lectures, speeches and sermons; and tables and compilations, including tables and compilations of data stored or embodied in a computer or a medium used in conjunction with a computer. - Musical Works
Musical work means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music. - Artistic Works
An artistic work means, irrespective of the artistic quality thereof: Paintings, sculptures (includes any cast or model made for purposes of sculpture), drawings (includes any drawing of a technical nature or any diagram, map, chart or plan), engravings and photographs (any product of photography or of any process analogous to photography); works of architecture, being either buildings or models of buildings; or works of craftsmanship - Cinematograph films Movies
A cinematograph film means any fixation or storage by any means whatsoever on film or any other material of data, signals or a sequence of images capable, when used in conjunction with any mechanical, electronic or other device, of being seen as moving picture and of reproduction, and includes the sounds embodied in a sound-track associated with the film, but does not include a computer program - Sound Recordings
A sound recording means any fixation or storage of sounds, or data or signals representing sounds, capable of being reproduced, but does not include a sound. - Broadcastings
A broadcast means a telecommunication service of transmissions consisting of sounds, images, signs or signals by means of electro-magnetic waves of specified frequencies, transmitted in space without an artificial conductor, and intended for reception by the public. - Program Carrying Signals
A program carrying signal means the first person emitting the signal to a satellite. - Published Editions
A published edition means the first print by whatever process of a particular typographical arrangement of a literary or musical work. - Computer Software Programs
A computer program means 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.
(1) Copyright Act 98 of 1978, as amended 1992
Copyright Infringement
Direct infringement:
Copyright in a work is infringed by any person who, without the authorisation of the owner, does any of the acts reserved for the owner.
For example:
- The making of unlawful copies without consent of the copyright owner
- The reproduction of unlawful copies without consent of the copyright owner
- Perform or Exhibits the work in Public without consent of the copyright owner
Indirect infringement:
Copyright is infringed indirectly by any person who, without the authority of the copyright owner, imports, sells, lets, by way of trade offers or exposes for sale or hire, or distributes for purposes of trade, an article in the Republic if he or she knew that the making of the article constituted an infringement of copyright or would have constituted an infringement if made in the Republic.
Legal Justification of Copyright
As a general rule, the ownership of the copyright vests in the author, except in the following cases: (Ref to SA Copyright Act, section 12, 21)
- The copyright in a literary or artistic work made by an author in the course of his employment by the proprietor of a newspaper, magazine or the like, belongs to the proprietor of the newspaper, magazine, etc. for the purposes of being so published, but in all other respects the copyright subsisting in the work vests in the author.
- A person who commissions a photograph, painting or drawing of a portrait, or the making of gravure, a cinematograph film or a sound recording, and pays for it pursuant to the commission, will be the owner of the copyright subsisting in the work so made.
- In the case of all works not falling within the above categories and which are made in the course of an author’s employment by another person under a contract of service or apprenticeship, the copyright will be owned by such other person, the employer.
Copyright shall not be infringed by any fair dealing with a literary or musical work
- For the purposes of research or personal or private use
- For the purposes of criticism or review of that work or of another work
- For the purpose of reporting current events in a newspaper, magazine or similar periodical; or by means of broadcasting or in a cinematograph film.
- Quotes
Provided that the source be mentioned in all works, as well as the name of the author.
General
- Copyright has no formal registration procedure:
No registration is necessary for copyright, since copyright is conferred automatically in terms of the Copyright Act. Although no prior registration or other formalities are required, it is desirable to place the date, name of the owner of the copyright, and a claim of copyright under all copyright material, for example: Copyright © 2006 Stellenbosch University All rights reserved - Duration of copyright:
The duration of copyright is prescribed in section 3(2) and the term is different for different categories of works. The term of copyright in respect of literary, musical or artistic works, other than photographs, is the life of the author plus fifty (50) years from the end of the year in which the author dies. There are special provisions for unpublished works:
1.) In respect of cinematograph films, photographs and computer programs, the term is fifty (50) years from the end of the year in which the work is made available to the public with the consent of the owner of the copyright, or the end of the year in which the work is first published, whichever term is longer, or failing this, fifty (50) years from the end of the year in which the work is made.
2.) In the case of sound recordings, the term is fifty (50) years from the end of the year in which the recording is first published.
3.) In respect of broadcasts, it is fifty (50) years from the end of the year which the broadcast first takes place.
4.) In the case of programme carrying signals, the term is fifty (50) years from the end of the year in which the signals are emitted to a satellite.
5.) In the case of published editions, the term is fifty (50) years from the end of the year in which the edition is first published.
6.) Special provisions provide for anonymous or pseudonymous works and works of joint authorship. - Organisations
DALRO (Dramatic, Artistic and Literary Works Organisation)
SAMRO (SA Music Rights)
SAPA (SA Publishers’ Association)
MUSA (Musicians’ Union of SA) - Conventions
Bern Copyright Treaty 1886 (RSA 187 and USA 1989)
Paris 1971
Copyright Treaty (WIPO) - Legislation
Copyright issues in South Africa are governed by the Copyright Act 98 of 1978.
Copyright Act 98 of 1978 | Cineographic Act 62 of 1977
Acknowledgements:
WIPO (World Intellectual Property Organisation)
Intellectual Property and Biotechnology: A Training Handbook
Adams & Adams Patent Attorneys
Gerard Verhoef
