Copyright Infringement

What constitutes copyright infringement?
Making photocopies for private use is NOT an infringement of copyright. Copying a public speech or a lecture does NOT constitute infringement. No infringement results if work is acknowledged when one is copying or citing from another author’s work.

Generally, in respect of written material, the following guidelines apply:
Wherever possible, the author’s permission should be sought to reproduce his/her work. If in an article, paper or speech, when referring to the work of another, it is required that details of the reference be provided in the form of the name of the author and details of his/her publication i.e. title of book or magazine, publisher, date of publication etc.

If only a small portion of the work is used, say a few sentences or a paragraph, and provided that an acknowledgement is made, permission is not needed. If a “significant” section is reproduced, such as a chapter, then permission should be obtained. It is generally accepted that work that is being used in academic institutions, research or for private use may be reproduced.

Clearly, if you were to copy a tape or a CD and sell this, it would constitute copyright infringement. But when a Dee-Jay at a party plays CDs, is copyright being infringed?

As a general guide, copyright infringement can be said to occur where the copyrighted material of others is used for commercial gain as opposed to private or personal use. Copyright infringement does not occur if you copy a public speech or lecture, made for information purposes, or photocopy government publications for public usage. Copyright in South Africa differs from other forms of intellectual property in that it does NOT need to be registered. Unlike patents, trade marks or registered designs, copyright vests in the author of a work once the work is created in a material form.

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.

More about Intellectual Property Law:

Patents – The first step is to file a South African provisional patent application for your invention. This is done to obtain the earliest possible date from which to claim rights to your invention, much like an option to protect your invention.

Designs – In South Africa, the designs register is split into two sections. Firstly, an aesthetic design protects the appearance of an article, irrespective of the aesthetic value thereof. Secondly, a functional design protects the appearance of an article in as far as its appearance is necessitated by the function that the article is to perform.

Trademarks – Once a trade mark is registered in South Africa, it needs to be renewed every 10 years to stay in force. However, provided you continue renewing your trade mark registration in South Africa, your rights to the trade mark may last indefinitely. A registered trade mark can be protected forever.

Copyright – 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.