Copyright Law in South Africa

Copyright in South Africa does not have to be registered. The only work that may be registered for copyright is Cinematograph Films or Videos. Unlike patents, trade marks 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. 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 / Videos
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 copyright 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.

Copyright Requirements

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.

Copyright Duration

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 50 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 – 50 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 – 50 years from the end of the year in which the recording is first published
Broadcasts – 50 years from the end of the year in which the broadcast first takes place
Programme-carrying Signals – 50 years from the end of the year in which the signals are emitted to a satellite
Published Editions – 50 years from the end of the year in which the edition is published

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.