Copyright in South Africa is governed by the Copyright Act (1) (“the Act”).
Copyright protects original works, and allows the owner of copyright to prohibit others from making unauthorized copies, reproductions or adaptations of the work, and/or offering these infringing copies for sale.
Copyright is conferred automatically in terms of the Act when certain basic requirements are met, and no registration is therefore necessary. In fact, registration is not possible in South Africa (and most countries), except in the case of cinematograph films, which can, but do not have to be, registered.
Although not a requirement, a warning to third parties of the protected nature of the work, such as “© 2013 Stellenbosch University All Rights Reserved”, is recommended.
As a general rule, the author or creator of a work is also the first owner of copyright. The major exceptions to the rule are where the work was made in the course of employment (the employer is the automatic owner), or where certain types of work are commissioned.
Where paintings, photographs, portraits, films, or sound recordings are commissioned, the commissioning party is automatically the owner. For all other commissioned works (e.g. computer programmes, logos, website copy), the parties should govern ownership by agreement, failing which, the first owner is still the author/creator, even though the work has been commissioned.
Requirements for Copyright
- the author must be resident in South Africa or a member state of the Berne Convention (the vast majority of countries);
- the work must be reduced to a tangible form – copyright does not protect the idea, but rather its physical embodiment;
- the work must have been published (i.e. made available in sufficient quantities to the target market);
- the work must be original; and
- the work should not be immoral or against public policy.
The major point for debate in most cases will be the originality of the work. South African case law sets a fairly low threshold for what “original” means, with our courts saying original does not have to mean “good” or meritorious”. Relevant considerations include the level and type of effort applied, as well as the extent to which existing material was used in creating the work.
Types of Works
The major works protected by the Act include:
- Literary Works e.g. novels and poetic works;
- Musical Works;
- Artistic Works e.g. paintings, photographs, architectural works;
- Cinematograph films;
- Sound Recordings; and
- Computer Programs;
The rules differ slightly from work to work, but the general rule for duration is the life of the author plus 50 years.
Copyright Infringement and defenses
Infringement arises where a party copies, adapts or reproduces an original work. There are a number of exceptions to this basic rule, and use of a work for research, criticism, review or journalistic purposes does not amount to infringement.
Importing of grey goods, i.e. importing of genuine goods but without licence to do so from the copyright owner or licensee in South Africa, is prohibited under the Act.
Claims for damages arise from the date a copying party is made aware of the copyright owner’s claim and the copying party’s alleged infringement of copyright.
There are a number of industry bodies that concern themselves with the enforcement of royalty payments for the use of works of copyright. These include:
DALRO (Dramatic, Artistic and Literary Works Organization)
SAMRO (South African Music Rights Organization)
SAPA (South African Publishers’ Association)
MUSA (Musicians’ Union of SA)
(1) 98 of 1978