Copyright

These notes deal with copyright. We can assist you with copyright matters in South Africa and other countries.If, after reading these notes, you have any questions, please do not hesitate to approach us.

Protection against copying | copyright is simply the proprietary right a person has over the expression of his or her ideas. This right entitles the author or owner of a computer program, painting or book for instance, to prevent unauthorised copying of their work.

Copyright in ideas | copyright does not protect ideas. Copyright protects only the expression of the idea – the physical form taken by the expression of the idea, such as the lines of code of a computer program or the idea expressed on the pages of a document, for instance. The expression of the idea in a different form does not amount to copying or copyright infringement. If protection is required for the underlying idea, patent protection must be sought.

Requirements for copyright

For a work to qualify for copyright protection, the work must meet the following statutory requirements.

The work must be a recognised subject of copyright – the Act gives protection to a number of categories or subjects of copyright – which are normally referred to in the Act as “works”, including:

• Literary works including novels, dramatic works, textbooks, letters
• Musical works consisting of music alone and excluding words or actions intended to be sung, spoken or performed with the music
• Artistic works including paintings, sculptures, drawings, engravings, photographs, works of architecture and works of three-dimensional craftsmanship
• Sound recordings provides protection for the recording of a musical work in a specific form, such as a compact disk
• Cinematograph films including films and videos
• Published editions protects the first print of a literary or musical work
• Computer programs consists of the final computer program (planning documents and flow charts relating to the computer program may be protected as literary works).

The work must be original – meaning the work must be the product of original skill and labour and it can not be a copy of another person’s work.

The work must be reduced to material form – the work must exist in some tangible form such as a document or computer disk. Copyright does not protect an idea, only the expression of the idea. The expression of the idea in a different form does not amount to copyright infringement. If protection is required for the underlying idea, patent protection must be sought.

The author of the work must be a qualified person – the author must be a citizen or resident of South Africa or any other country that is a signatory to the Berne Convention on copyright, which include most of the countries of the world, or a company registered in South Africa or a Berne Convention country. If the author is neither of these things, the work will still enjoy copyright protection if it is first published in South Africa.

Infringement

Infringement of copyright occurs where a person reproduces a work or a substantial part of a work without authorisation. Copyright infringement is normally controlled by the owner of the copyright, but the Act does provide certain criminal penalties for copyright infringement. Normally, however, the owner of the copyright in the infringed work institutes a civil action against the infringer for the court to interdict or prevent any further infringement and to recover damages or a reasonable royalty to compensate the copyright owner for the loss suffered as a result of the infringement. It is also possible to have any infringing copies handed over to the copyright owner.

Infringement exemptions | permitted reverse engineering

In certain circumstances, our law allows works to be copied without authorisation.One such circumstance is reverse engineering of articles that have a primarily utilitarian purpose and are made by an industrial process which, in certain circumstances, is permitted.

Ownership of copyright

In most cases, the author of a work is the first owner of the copyright in the work. The author is the creator of the work in the case of literary, musical and artistic works. In respect of photographs, computer programs, sound recordings and cinematograph films, the author (and therefore first owner) of the copyright in the work is the person in control of or responsible for the making of the work. The Act provides for other instances where the author is not automatically the owner of a work. The ownership of copyright can also be varied and transferred contractually. The issues surrounding copyright ownership are complex and if there is any doubt as to the legal rights or options in regard to copyright ownership, it is best to consult an intellectual property law specialist.

Assigning and licensing copyright

The copyright in copyright-protected works may be sold or licensed. For instance, the copyright in the musical works on a CD or the copyright in almost all off-the-shelf computer software is never sold with the product. It is merely licensed for use by the buyer. Even shareware or open-source software relies on a licence that permits use of the software, even though it is for free. In the same way it is necessary to obtain a license in order to play copyrighted music in public. Such a license is granted by the Southern African Music Rights Organisation (SAMRO). Proprietors of shops, restaurants, nightclubs and the like require a SAMRO license in order to play music on their premises. Again, if in doubt, contact an intellectual property law specialist for assistance in this regard.

Duration

Copyright in literary, musical and artistic works exists for 50 years after the death of the author of the work. Computer programs enjoy copyright protection for 50 years from the year in which legitimate copies of the computer program were first made available to the public.

Registration of copyright

If a work satisfies the requirements set out above, copyright will automatically subsist in that work and no registration is necessary (nor is it available). Only cinematographic films are required to be registered in terms of South African law.

Copyright notice

It is not compulsory to place a copyright notice on a work that is protected by copyright. It is, however, advisable to place such a notice on your work because it acts as a warning to any potential infringers.

A copyright notice usually consists of the international copyright symbol © followed by the name of the owner of the copyright and the year in which the copyright came into existence. It is also advisable to add in the year of most recent publication.

A shorter version can be used in many places in a publication – for example:

© – Name of owner/s – Year of first publication – year of most recent publication

A full version can be used at the beginning of a publication – for example:

© – Name of owner/s – Year of first publication – year of most recent publication

International Copyright subsists in this work. No part of this work may be reproduced or adapted by any means, electronic or mechanical, including photocopying, recording or by means of any information storage and retrieval system, without permission in writing from the copyright owner, nor may this work or any adaptation or derivative of this work be transmitted in any form. Any such unauthorised reproduction, adaptation or transmission of this work will constitute copyright infringement and render the person making the unauthorised reproduction, adaptation or transmission liable under both civil and criminal law.

Do you have any further questions on Copyright?

Do you have any further questions on Copyright?

Do you have any further questions on Copyright?