South Africa is a member of the Berne Convention and South African copyright law is in compliance with the copyright laws of most industrialised nations. Copyright arises automatically and, with the exception of cinematographic films, no registration is required or is even possible.
What is copyright?
Copyright is the right given to the author or proprietor of a copyright work not to have that work reproduced without authorisation. Copyright is property and may be sold, assigned or licensed for use by others.
What is protected by copyright?
Copyright may vest in any the following works:
Literary works (including novels, stories, poems, stage directions, textbooks, essays, letters, reports, instruction manuals, written tables and compilations, etc);
Computer programs and software;
Artistic works (including paintings, sculptures, drawings, engravings, photographs, works of architecture and technical drawings);
Cinematographic films; and
Radio and television broadcasts.
For copyright to vest in a work, the work must be the product of original skill and effort and must be reduced to a material form. Copyright cannot, therefore, exist in an idea that has not been reduced to material form.
Who owns the copyright?
The owner of the copyright in a work is generally the creator or author of the work. Important exceptions to this general rule include:
A person who commissions the taking of a photograph, the painting or drawing of a portrait, the making of a cinematograph film or sound recording, and who pays for it in money or money’s worth, is – subject to certain provisions, the owner of the copyright subsisting in that work.
Where a work is made by a person in the course of his employment under a contract of service or apprenticeship, the employer will be the owner of the copyright subsisting in that work.
In the case of a computer program, the author (and normally the owner) of the copyright is the person who “exercised control over the making of the computer program”.
Copyright in works made under the direction or control of the State or certain prescribed international organisations will vest in the State or in that international organisation.
How long does copyright last?
In the case of literary, musical and artistic works (other than photographs) the term of copyright is 50 years from the end of the year in which the author of the work dies.
For computer programs the term is 50 years from the year in which legitimate copies were first made available to the public.
For published cinematographic films, photographs, sound recordings, radio and television broadcasts and other programme carrying signals – 50 years from the end of the year in which the work was first published or broadcast. For films or photographs which are not published within 50 years of the year in which they were made, the term of copyright is 50 years from the end of the year in which they were made.
Which actions do not infringe copyright?
Certain forms of fair dealing with copyright works do not constitute infringement. These include:
The use of a literary or musical work for private study, criticism or review, reporting of current events, or any publication, broadcast or sound or visual recording used for teaching purposes. Copyright is not violated if the name of the author and the source of the extract are mentioned, and if the whole of the work, or a substantial part of it, is not reproduced;
Reproduction of a lecture or address which has been delivered in public, if the reproduction is for information purposes; and
Reproduction of official textbooks of a legislative, administrative or legal nature, speeches of a political nature or delivered in the course of legal proceedings, and news of the day that are mere items of press information.
Three-dimensional articles are usually protected by copyright as artistic works. However, copying three-dimensional products is not an infringement of the copyright in the artistic work if the article primarily has a utilitarian purpose and is made by an industrial process. In the case of an industrial article made from technical drawings, copying the three-dimensional product made from the drawings is not an infringement of the copyright in the drawings. This is known as reverse engineering. Under certain circumstances, therefore, it is possible to reverse engineer a three dimensional product without infringing copyright. Great care should be taken, however, before copying such articles as other provisions of the law may prevent it. Unlawful competition is particularly relevant and we urge you to contact us before copying any commercial article.