In South Africa, any original work created by a qualified person is generally eligible for copyright protection. Originality requires that the work is the result of the author’s own creativity and labour, ensuring that the work reflects independent intellectual effort. South Africa does not have a formal system for registering copyright but, copyright registration allow filmmakers to formally document their cinematograph works, even though copyright protection exists automatically for most other types of original works.
The Copyright Act provides that the ownership of the copyright vests in the author, except that:
- 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 purpose 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, the painting or drawing of a portrait, the making of a gravure, the making of 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;
- where the work is made by or under the direction or control of the state or an international organisation, copyright is conferred and vests in the state or in the relevant international organisation;
- the work (with certain exceptions) must have been written down, recorded, represented in digital data or signals, or otherwise reduced to material form;
- 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 (ie the employer).
Copyright Registration for Cinematograph Films in South Africa
South Africa does not have a formal system for registering copyright, with the exception of cinematograph films. In terms of the Cinematograph Films Act, 1977 (Act 62 of 1977), cinematograph films may be registered for copyright. An application for copyright registration of a cinematograph film must include the required supporting documents, as prescribed by the Act. This provides creators of films with a formal mechanism to secure legal recognition and protection of their works.
- Form RF 1, in duplicate, one copy of which shall be signed by the Registrar and returned to the applicant as proof of lodging. Any document in a language other than the English or Afrikaans languages shall be accompanied by an exact translation thereof, certified to the satisfaction of the Registrar.
- Form RF 2 in duplicate. (c) Statement of case giving particulars as required by sub-regulation 9 (2), verified by a sworn declaration made on Form RF 9 by the author or by some person authorised to act on his behalf and approved by the Registrar.
- In the event that the applicant is not the author of the cinematograph film, appropriate documentary proof of his title or authority to apply to the satisfaction of the Registrar.
- Any other relevant supporting duly authenticated documents or copies thereof.
- An abstract on Form RF 3, in duplicate. (to be summarised from the information contained in the statement of case as required by regulation 9 (1) and (2) and the storyline shall be in narrative form and shall not be more than 150 words.)
In South Africa, cinematograph films can be registered for copyright, but registration is not required for copyright protection to exist. Copyright automatically arises once the film is created and fixed in a material form, giving the creator exclusive rights regardless of whether the work is formally registered.
