Copyright
Copyright is a legal right created by the law of a country
Copyright in South Africa comes into existence automatically (no registration is required) and provides protection for certain kinds or “works”. Details relating to and governing copyright are set out in the Copyright Act (“the Act”).
The Act recognizes the following types of works:
- literary works;
- musical works;
- artistic works;
- cinematograph films;
- sound recordings;
- broadcasts;
- programme-carrying signals;
- published editions; and
- computer programs
Some examples of the literary and artistic works are set out below:
- literary works: novels, stories, poems, scripts, textbooks, articles, letters, reports, lectures, speeches, tables and compilations, including tables and compilations of data stored in a computer or on a computer readable medium;
- artistic works: paintings, sculptures, drawings (technical drawings, diagrams, maps, charts or plans), engravings, photographs, works of architecture (buildings or models), other works of craftsmanship.
A computer program is defined as a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer directing its operation to bring about a result.
If a work falls within the one of the definitions set out in the Act, copyright will subsist at the time when it is created, provided certain requirements are complied with:
- The author must be a qualified person, at the time the work or a substantial part thereof is made. To be a qualified person an individual must be a South African citizen or domiciled or resident in the Republic. A juristic person must be incorporated under the laws of the Republic of South Africa. (It is also acceptable if the same criteria are met with regard to a country other than South Africa if that country is also a member of the Berne Convention); OR
- [where the author is not a qualified person] If the work is first published in South Africa (or a Berne Convention country). In the case of broadcasts, cinematograph films and computer programs, if it is made in South Africa (or a Berne Convention country).
The Act provides that a “work” must be “original” to be protected by copyright but provides no definition of what qualifies as “original”. Our courts have indicated that this should not require that a work be unique or inventive. Rather, a work should be the product of someone’s own labours and endeavours. It should not be copied from another source.
The Act also requires that a “work” must exist in writing or some other material form (with the exception of broadcasts and programme-carrying signals). There is no Copyright protection for an idea while it is still only in someone’s mind.
The author of a copyright work is normally (but not always) the person who makes or creates the work. The author is normally also the first owner of the copyright.
The following cases are exceptions to this general rule:
- 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 similar periodical belongs to the proprietor of that periodical for the intended purpose of publication, but in all other respects the copyright vests in the author.
- Where a person commissions against payment the taking of a photograph, painting or drawing of a portrait, making of a gravure, cinematograph film or sound recording, that person will be the owner of copyright in the work.
- In any other case, where a work is 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.
Copyright, like other intellectual property, is an asset that can be transferred (through assignment) or licensed. An assignment or an exclusive license must be made in writing and signed by the assignor/licensor (that is the person who actually owns the Copyright in question). A non-exclusive license may be given orally or inferred from the conduct of the parties. The Act provides for a Tribunal to resolve disputes relating to licenses.
Copyright generally lasts for 50 years from the end of the year:
- in which the author dies;
- in which the work is made available to the public;
- in which the work is first published; or
- in which the work is made;
(depending on the type of work and circumstances).
The owner of copyright has exclusive rights to do or to authorize the doing of certain acts depending on the type of works. The most important of these acts is the making of reproductions of a work.
Copyright allows you to stop others from copying a work (or a substantial part thereof). If a work is not actually copied copyright is not infringed, regardless of the degree of similarity.
Copyright is generally not infringed by making three-dimensional copies of three-dimensional products which (a) are available to the public with consent of the copyright owner; (b) primarily have a utilitarian purpose; and (c) are made by an industrial process. Copyright will still protect the two-dimensional artistic works (drawings of the products), prototypes, and moulds and mould drawings – these cannot be copied.
The Act does not require that a work be marked with a notice of copyright. It is however advisable to mark a copyrighted work with the copyright sign (©), the year in which the work was made or published and the names of the author and/or copyright owner. This notice gives an indication that you are aware of your rights and may deter others against copying. Furthermore, it serves as a notice to create guilty knowledge on the part of an alleged infringer.
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