The Ultimate Guide To Copyright Protection In South Africa

What Is Copyright?

Copyright is simply the proprietary right a person has over the expression of his or her ideas. This right entitles the author or owner of a computer program, painting or book for instance, to prevent the unauthorized copying of his or her work. In South African the law of copyright is regulated by the Copyright Act 98 of 1978 (“the Act”)

What Does Copyright Protect?

It is important to understand that copyright does not protect ideas. Copyright protects only the expression of the idea, in other words the physical form taken by the expression of the idea, such as the lines of code of a computer program or the idea expressed on the pages of a book or document (If protection is required for the underlying idea, patent protection must be sought).

What Works Are Eligible For Copyright Protection?

• Literary works – This includes novels, dramatic works, textbooks and letters.
• Musical works – This consists of music alone and excludes words or actions intended to be sung, spoken or performed with the music.
• Artistic works – This includes paintings, sculptures, drawings, engravings, photographs, works of architecture and works of three – dimensional craftsmanship.
• Sound recordings – This provides protection for the recording of a musical work in a specific form, such as a compact disk or mp3.
• Cinematograph films – This includes films and videos.
• Sound and television broadcasts – This consists of the transmission of sounds, images, signs or signals at certain frequencies, which is intended for reception by the public or certain sections of the public.
• Programme-carrying signals – This consists of a signal containing a program which is emitted and passed through a satellite.
• Published editions – This protects the first print of a literary or musical work
• Computer programs – This consists of the final computer program. Planning documents and flow charts relating to the computer program may be protected as literary works. The computer program will be entitled to protection as a literary work, until such time as the computer program is in final form.

What Are The Requirements For Copyright?

In order for copyright to subsist in a work, such work must meet the general and specific requirements for the subsistence of copyright as required by the Act.

The general requirements in respect of a work requires that the work in question must be original and exist in material form. The originality requirement does not mean that the work must be unique or inventive, but merely that the work must be the product of the author’s own labor and endeavors and not merely copied from another source. The work must also be reduced to material form and must be written down, recorded, represented in digital data or signals or otherwise reduced to a material form. It is therefore the physical embodiment of the work (idea) that enjoys copyright protection.

The specific requirements of copyright relate to the status of the author of the work and the circumstances of the first public dissemination of the work. The author of the work must be a citizen or resident of South Africa or any other country that is a signatory to the Berne Convention on copyright, which include most of the countries of the world, or a company registered in South Africa or a Berne Convention country. If the author is neither of these things, the work will still enjoy copyright protection if it is first published in South Africa. Finally, the content of the work must not be immoral, improper or offensive.

Does Copyright Protection Require Registration?

Unlike trade marks, copyright will automatically subsist in a work and no registration is necessary (nor is it available), in the event that the work satisfies the general and specific requirements for copyright as discussed above.  Only cinematographic films are required to be registered in terms of South African law. 

Is A Copyright Notice On A Work Compulsory?

It is not compulsory to place a copyright notice on a work that enjoys copyright protection. It is, however, advisable to place such a notice on your work because it acts as a warning and deterrence to any potential infringers. A copyright notice usually consists of the international copyright symbol © followed by the name of the owner of the copyright and the year in which the copyright came into existence. It is also advisable to add in the year of most recent publication.

A shorter version can be used in many places in a publication – for example:

© – Name of owner/s – Year of first publication – year of most recent publication.

A full version can be used at the beginning of a publication – for example:

© – Name of owner/s – Year of first publication – year of most recent publication Copyright subsists in this work. No part of this work may be reproduced or adapted by any means, electronic or mechanical, including photocopying, recording or by means of any information storage and retrieval system, without permission in writing from the copyright owner, nor may this work or any adaptation or derivative of this work be transmitted in any form. Any such unauthorized reproduction, adaptation or transmission of this work will constitute copyright infringement and render the person making the unauthorized reproduction, adaptation or transmission liable under both civil and criminal law.

For What Period Of Time Will Copyright Endure?

Copyright in literary, musical and artistic works subsists for 50 years after the death of the author of the work. Cinematograph films, photographs and computer programs enjoy copyright protection for a period of 50 years from the year in which legitimate copies of the computer program were first made available to the public with consent of the copyright owner or after the work was first published, whichever is longer.

Who Is Considered The Owner Of A Copyright Work?

The general rule in copyright is that the author of a work is also the first owner of the copyright in the work. The author is the creator of the work in the case of literary, musical and artistic works. In respect of photographs, computer programs, sound recordings and cinematograph films, the author (and therefore first owner) of the copyright in the work is the person in control of or responsible for the making of the work.

There are, however, exceptions to the general rule and the Act provides for other instances where the author is not automatically the first owner of the copyright in the work. The ownership of copyright can also be varied and transferred contractually. The issues surrounding copyright ownership can be complex and if there is any doubt as to the legal rights or options in regard to copyright ownership, it is best to consult an intellectual property law specialist.

Can Copyright Be Assigning Or Licensed?

The copyright in copyright-protected works may be sold or licensed. For instance, the copyright in the musical works on a CD or the copyright in almost all off-the-shelf computer software is never sold with the product. It is merely licensed for use by the buyer. Even shareware or open-source software relies on a license that permits use of the software, even though it is for free. In the same way it is necessary to obtain a license in order to play copyrighted music in public.

Such a license is granted by the Southern African Music Rights Organisation (SAMRO). Proprietors of shops, restaurants, nightclubs and the like require a SAMRO license in order to play music on their premises. Again, if in doubt, contact an intellectual property law specialist for assistance in this regard.

How Is Copyright Infringed?

Infringement of copyright occurs where a person reproduces a work or a substantial part of a work without authorization of the copyright holder. Copyright infringement is normally controlled by the owner of the copyright, but the Act does provide certain criminal penalties for copyright infringement.

Normally, however, the owner of the copyright in the infringed work institutes a civil action against the infringer for the court to interdict or prevent any further copyright infringement and to possibly recover damages or a reasonable royalty to compensate the copyright owner for the loss suffered as a result of the copyright infringement. It is also possible to have any infringing copies handed over to the copyright owner for destruction.

Are There Exemptions To Copyright Infringement?

In certain circumstances, the Act makes provision for works to be copied without authorization of the copyright holder. These specific situations are set out in the Act. It is, however, advisable to consult an intellectual property law specialist before copying any part of a person’s work.