Basic guide to Copyright

Introduction
The word COPYRIGHT is actually a misnomer. Copyright does not provide ‘a right to
copy’. It provides a right ‘to prevent copying’. A better term would probably have been ‘copy prevention right’.

Alternatively, the terminology used in some European States would be more appropriate, such as AUTHOR’S RIGHT or ORIGINATOR’S RIGHT. Be as it may, a rose called by any other name would smell as sweet and therefore the term COPYRIGHT is to be used when referring to the South African Copyright Act 98 of 1978.

Various relevant provisions in the Copyright Act are summarised below.

Works eligible for copyright protection
The Copyright Act provides in Section 2 that the following types of works are eligible for protection:

• iterary works
• musical works
• artistic works
• cinematograph films
• sound recordings
• broadcasts
• programme-carrying signals
• publishing editions
• computer programs.

Literary works
The Copyright Act in Section 1(1)(xxviii) gives a list of ‘literary works’ and states that these include "irrespective of literary quality and in whatever mode or form expressed":

a. novels, stories and poetical works;
b. dramatic works, stage directions, cinematograph films, scenarios and
broadcasting scripts;
c. textbooks, treatises, histories, biographies, essays and articles;
d. encyclopaedias and dictionaries;
e. letters, reports and memoranda;
f. lectures, speeches and sermons;
g. tables and compilations, including tables and compilations of data stored or
embodied in a computer or a medium used in conjunction with a computer.

However, a literary work does not include a computer program.

Musical works
The Act states (Section 1(1)(xxx)) that a ‘musical work’ means a work consisting of
music, exclusive of any words or action intended to be sung, spoken or performed with the music.

Artistic works
‘An artistic work’ is defined in the Act (Section 1(1)(iii)) as meaning "irrespective of the artistic quality thereof":

a. paintings, sculptures, drawings, engravings and photographs;
b. works of architecture, being either buildings or models of buildings, or
c. works of craftsmanship not falling within either paragraph (a) or (b).

Cinematograph film
According to the Act (Section 1(1)(viii)) a ‘cinematograph film’ means any fixation or storage by any means whatsoever on film or any other material of data a sequence of images capable, when used in conjunction with any mechanical, electronic or other device or being seen as a moving picture and of reproduction, and includes the sounds embodied in a sound-track associated with the film, but does not include a computer program.

Sound recordings
The Act defines ‘sound recordings’ in Section 1(1)(xlviii) as meaning any fixation of
sounds or data or signals representing sounds, capable of being reproduced, but does not include a sound-track associated with a cinematograph film.

Broadcasts
According to the Copyright Act (Section 1(1)(v)) a ‘broadcast’, used as a noun, means a telecommunication service of transmissions consisting of sounds, images, signs or signals which:

a. takes place by means of electromagnetic waves of frequencies of lower than 3 000 GHz transmitted in space without an artificial conductor; and
b. is intended for reception by the public or sections of the public,

and includes the emitting of programme-carrying signals to a satellite, and, when used as a verb, shall be construed accordingly.

Programme-carrying signals
‘Programme-carrying signals’ are, according to the Copyright Act, a signal embodying a program which is emitted and passes through a satellite (Section 1(1)(xxxvi).

Published editions
The Act defines ‘published editions’ as the first print by whatever process of a particular typographical arrangement of a literary or musical work (Section 1(1)(xxxviii)).

Computer programs
Until 1992 the Act listed computer programs as literary works. Now computer programs are listed separately and are defined as a set of instructions fixed or stored in any manner and which, when used direct or indirectly in a computer, directs its operation to bring about a result (Section 1(1)(ix)).

Registration
There is no registration of copyright.

Creation of Copyright
Copyright in a work, except a broadcast or programme-carrying signal, is created
immediately when it has been written down, recorded, presented in digital data or
signals or otherwise reduced to a material form [Section 2(2)].

A broadcast or a programme-carrying signal shall not be eligible for copyright, until in
the case of a broadcast, it has been broadcast and, in the case of a programme-carrying signal, it has been transmitted by a satellite (Section 2(2A)).

Who is entitled to copyright protection?
An author (or in the case of joint authorship, any one of the authors) must, at the time a work or a substantial part thereof is made, be a ‘qualified person’ in order to obtain copyright protection.

A qualified person is (Section 3(1)):

a. in the case of an individual, a person who is a South African citizen or who is domiciled or resident in the Republic of South Africa.
b. in the case of a juristic person, a body incorporated under the laws of the Republic of South Africa.

In the case of a work of architecture erected in the Republic of South Africa or any other artistic work incorporated in a building or any other permanent structure in the Republic of South Africa, such a work is eligible for copyright protection whether or not the author was a qualified person (Section 3(1)).

Duration of copyright
The duration granted for works of copyright varies depending on the type of work (see Section 3 for detailed provisions).

Literary or musical works or artistic works, other than photographs, have a life span,
which extends for the life of the author and 50 years from the end of the year in which the author dies.

However, if the work has not been published, performed, or offered for sale or broadcast during the life of the author, the copyright protection shall continue for a period of 50 years from the end of the year in which any of these acts are done relating to the work.

Cinematograph films, photographs and computer programs are protected for 50 years from the end of the year in which the work made available to the public with the consent of the owner of the copyright or is published, or, failing such an event, for 50 years from the end of the year in which the work is made.

Sound recordings are protected for 50 years from the end of the year in which the
recording is first published.

In the case of broadcasts, the protection is 50 years from the end of the year in which the broadcast first takes place.

Programme-carrying signals are protected for 50 years from the end of the year in which the signals are transmitted to a satellite.

Published editions are protected for 50 years from the end of the year in which the
edition is first published.

In the case of anonymous or pseudonymous works, the copyright is for 50 years from the end of the year in which the work is made available to the public with the consent of the owner of the copyright or from the end of the year in which it is reasonable to presume that the author died, which ever term is shorter.

Ownership of copyright
The ownership in works of copyright is determined differently depending on the type of work and the position or occupation of the author. Generally the author is the copyright holder, but there are several exceptions, as listed below (Section 21).

Where a literary or artistic work is made by an author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship and is so made for the purpose of publication in a newspaper, magazine or similar periodical, the proprietor shall be the owner of the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical or to reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the owner of any copyright in such a work (Section 21(1)(b)).

Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a sound recording and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, such person shall be the owner of the copyright (Section 21(1)(c).

Where the above does not apply and the work is made in the course of the author’s employment by another person under a contract of service or apprenticeship, that other person shall be the owner of any copyright subsisting in the work (Section 21(1)(d)).

Where a work is made by or under the direction or control of the state or certain
international organisations, the copyright belongs to the state or such international
organisation (Section 21(8)).

Reverse engineering
The copyright in an artistic work of which three-dimensional reproductions were made available, whether inside or outside the Republic of South Africa, to the public by or with the consent of the copyright owner (authorized reproduction) is not infringed if any person, without the consent of the owner, makes or makes available to the public three-dimensional reproductions or adaptations of the authorized reproductions, provided the authorized reproductions primarily have a utilitarian purpose and are made by an industrial process (Section 15(3A)).

Therefore so-called ‘reverse engineered articles’ copied from other articles in which as "artistic works" copyright may subsist, do not infringe such copyright. (However, other protective rights, such as patent and design rights are not influenced hereby and the common law practice of unfair or unlawful competition and passing off are also available).

International agreements
South Africa has been a member of the Berne Convention since 1928 so that works protected by copyright in South Africa are also protected automatically in other member countries of the Berne Convention (with certain exceptions). The USA became a member of the Berne Convention during 1989 and thus the bilateral agreement between South Africa and the USA of 1924 was withdrawn during 1991.