Copyright in South Africa
Difference between copyright and other intellectual property
Copyright in South Africa, like in most other countries, differs from other forms of intellectual property in that it is not a right that needs to be registered (except in the USA). Unlike patents, trademarks or registered designs, copyright vests in the author of a work once the work is created in a material form.
What is eligible for copyright protection?
Through the years, certain classes of copyright have been developed, rather artificially, to describe works eligible for copyright protection. In general, any original work made by a qualified person is eligible for copyright protection. Originality refers to the fact that the author must have created the work through the application of the author's own creativity and labour. A qualified person refers to any national or resident of South Africa or a Berne Convention country. Please contact us, should you require an updated list of Berne Convention countries. In addition, the work that is to enjoy copyright protection must have been reduced to a material form. In other words, mere ideas are not considered protectable by way of copyright. The author must have written down or recorded the creation in a material form for copyright to come into existence. As technology has progressed, the types of works eligible for copyright have expanded to include new creations which were previously unknown, such as computer programs and broadcasts. In terms of the South African Copyright Act (No. 98 of 1978), the following works, if original, are eligible for copyright protection:
- Literary works (eg. novels, poems, textbooks, letters, reports, lectures, speeches)
- Musical works
- Artistic works (eg. paintings, sculptures, drawings, photographs)
- Cinematograph films
- Sound recordings
- Broadcasts (electromagnetic transmissions intended for reception by the public)
- Programme-carrying signals (a programme signal which passes through a satellite)
- Published editions of books (usually the first print of a literary or musical work)
- Computer programs (instructions directing the operation of a computer)
Each type of copyrighted work is defined specifically in the Act. It isn't always easy to identify which type of "work" a creation resorts under and it may be that one work may embody different types of copyright protection. This is a specialized area of intellectual property law and should there be any confusion as to which type of work your creation resorts under, or you need advice on the legal use of copyrighted works, please feel free to contact us.
The author of copyright in terms of the South African Copyright Act
The authorship of copyrighted works is frequently disputed. The South African Copyright Act provides very clear guidelines as to who shall be considered authors of any particular types of copyrighted works. The following is a summary of these guidelines:
- Literary, musical or artistic works - the person who first makes or creates the work
- Photographs - the person responsible for the composition of the photograph
- Sound recordings - the person who made arrangements for the making of the recording
- Films - the person who made arrangements for the making of the film
- Broadcasts - the first broadcaster
- Published editions - the publisher of the edition
- Programme-carrying signals - the first person emitting the signal to a satellite
- Computer programs - the person who exercised control over the making of the program
Exceptions to authorship of Copyrighted works in terms of the South African Copyright Act
The author is usually regarded as the first owner of the work. However, there are exceptions to this. These include:
- Literary or artistic works made by an author when employed by a newspaper, magazine or the like. In this case, authorship vests in the publisher. However, authorship vests in the author for the unused sections.
- If someone commissions and pays for the taking of a photograph, painting or drawing of a portrait
- If someone commissions and pays for the making of a film or sound recording
- If the work was created in the course of an author's employment, the authorship vests in the employer
Duration of Copyright in terms of the South African Copyright Act.
This depends on the type of work that has been created. Generally, the term of copyright is 50 years, subject to the following:
- Literary, musical or artistic works - copyright exists for the life of the author plus fifty years following death, calculated from the end of the year the author died in or 50 years from the date of first publication, performance in public, offering for sale of records thereof or the broadcasting thereof , whichever is later.
- Films and photographs - fifty years from the end of the year in which the work is made publicly available, or the end of the year in which the work is first published, whichever is longer, or fifty years from the end of the year in which the work is made
- Sound recordings - fifty years from the end of the year in which the recording is first published
- Broadcasts - fifty years from the end of the year in which the broadcast first takes place
- Programme-carrying signals - fifty years from the end of the year in which the signals are emitted to a satellite
- Published editions - fifty years from the end of the year in which the edition is published
Transfer of copyright
Much like other property, copyright can be transferred by assignment, testamentary disposition or by operation of law. Copyright can also be licensed to a licensee for royalties. It is important to note that an assignment and an exclusive license (which precludes anyone else, including the author from using the creation) must be in writing and signed by the assignor to be valid. A non-exclusive license may be written or oral, or inferred from the conduct of the parties.