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Copyrights in South Africa

Legislation – Copyright Act 1978.

Subject-Matter

Under the Copyright law in South Africa, following original works are eligible for Copyright protection:

  • Literary works
  • Artistic works
  • Musical works
  • Sound Recordings
  • Cinematograph Films
  • Broadcasts
  • Programme-Carrying Signals
  • Published Editions
  • Computer Programs.

Note 1: No Copyright unless a work is expressed in forms like, written or recorded or digital data or broadcast or programme-carrying signals or any other material form.

Note 2: Copyright is vested once the Broadcast is broadcasted and in case of Programme-Carrying Signal, is transmitted by a satellite.

Qualified Person

The following author are designated as qualified person for being conferred with the Copyright for their work:

  • If the individual is South African citizen or resident or domiciled in South Africa
  • If the entity or juristic person is incorporated under the laws of South Africa

Note: Work of Architecture erected in South Africa or any artistic work which has been made as a permanent structure in South Africa will also be eligible for Copyright protection.

Term of Protection

The duration of protection for various works under the South African Copyright law are as under:

  • Literary, Musical or Artistic work – Lifetime of the Author and 50 years from the end of year in which the author dies.

Note: Artistic work here does not include photographs

  • Cinematograph Film, Photographs or Computer Program – 50 years from the end of the year in which the work is :
  • Made available to public; or
  • First published.

In such an event where neither (a) or (b) has occurred then the period of 50 years will be start from the year in which the work was made.

  • Sound Recording or Published editions – 50 years from the end of year in which the recording or edition was first published.
  • Broadcast or Programme-Carrying signal – 50 years from the end of year in which the broadcast took place or the sign was emitted to a satellite.
  • Joint Authorship – Period of protection be calculated from the author who died last, irrespective that the said author was qualified person or not.
  • Anonymous or pseudonymous work – 50 years from the end of year in which work is made available to the public or from the end of the year in which it is reasonable to presume that the author died.

Exclusive Rights

The following exclusive rights are available under:

Literary or Musical Work

  • Reproducing work in any form or manner
  • Publication of work
  • Performance of work
  • Broadcasting of work
  • Transmission of work in a diffusion service (unless operated by original lawful broadcaster).
  • Adaptation of work

Artistic Work

  • Reproducing work in any form or manner
  • Publication of work
  • Including the work in Cinematograph Film or Television broadcast
  • Causing the Television broadcast or Cinematograph Film bearing the work to be transmitted in a diffusion service (unless operated by original lawful broadcaster)
  • Adaptation of work

Sound Recording

  • Making record embodying the sound recording, directly or indirectly.
  • Broadcasting the sound recording
  • Direct of indirect hire by way of trade in respect of the sound recording.
  • Causing the transmission of sound recording in a diffusion service (unless operated by original lawful broadcaster)
  • Communication of recording to public

Cinematograph Film

  • Reproducing work in any form or manner including making photograph therefrom
  • Causing the images to be seen and sound to be heard in public, in respect of the film
  • Broadcasting the film
  • Causing the film to be transmitted in a diffusion service (unless operated by original lawful broadcaster).
  • Adaptation of film
  • Direct or indirect hire by way of trade in respect of the film.

Broadcasting

  • Reproduction of broadcast in any manner or form, either directly or indirectly, including making still photograph from a broadcast.
  • Rebroadcasting the broadcast.
  • Causing the transmission of broadcast in a diffusion service (unless operated by the original lawful broadcaster).

Programme- carrying Signal

  • Right to undertake or authorize, distribution of such signals by any distributor to general public.
  • The above right can be used for direct or indirect distribution, within South Africa or from South Africa.

The law provides for following arrangement in respect of Royalty:

  • The law prohibits transmission of or broadcasting of or playing of sound recording, especially the ones provided as exclusive rights, without payment of the royalty to the owner.
  • The amount of royalty should be determined by an agreement between the user of sound recording, the performer and the owner of the recording or through the collecting societies.
  • The owner of the copyright is required to share the royalty received with any performer whose performance is featured in the recording and who is entitled to receive royalty as per Performers Protection Act 1967.
  • Performers share of royalty is to be determined as per the agreement between the owner and the performer or between the representative collecting societies.
  • The above conditions are subject the terms of the agreement. In case the agreement does not provide for specific provisions as mentioned above, then the matter can be referred to the Copyright Tribunal or can also agree to refer the matter for Arbitration.
  • Note: Right to claim royalty can be claimed, by any successor in title, under contractual arrangement, operation of law, testamentary disposition etc., against the person who in obligated to pay the royalty.

Fair Dealing under the Copyright Law in South Africa

Some of the fair dealing provisions listed under the law are as follows:

  • Research Purposes or Private Study
  • Personal or Private Use.
  • Criticism or review of work
  • Reporting current events in newspaper, magazine or similar periodical
  • Reporting current events through broadcast
  • For Judicial proceeding
  • Teaching and Educational Purposes

Some of the necessary precautions that are recommended by the law are:

  • Source reference should be made wherever possible

Generally speaking, owing to the function of the Berne Agreement, any original content fixed in a tangible format starts enjoying copyright protection in South Africa. It is pertinent to note that copyright can be associated to a work by putting either the copyright symbol “©” or just the word copyright along with the work. There is no provision to acquire protection via. Registration for literary and artistic work.

However, cinematographic films / videos to be used commercially require copyright registration, the procedure for which is as follows:

  • Register as a customer on the CIPC website.
  • Deposit fee for filing using customer code towards CIPC.
  • Four forms with regards to details of the applicant and the video / cinematographic film needs to be sent via. Post to the CIPC along with a Power of Attorney if services of a legal professional are invoked.

Cost for applying for copyright registration of cinematographic film in South Africa is ZAR 510.

Note: Registration procedure for only videos/ cinematographic films is provided and required (in case of commercial use), rest all original works in which copyright subsists may be used with basic additions of the term / symbol of copyright along with the name of the author along with the year of creation (optional).  

Copyright in South Africa can be transferred by way of assignment or licenses. If a work is assigned the copyright owner agrees to divest all his rights in favour of the assignee. However, in a license even if it is an exclusive license, the owner retains the ownership of the work while the assignee may exclusively use the work.

For a work to be transferred, an agreement for the same must be executed and must adhere to the following essentials:

  • Agreement must be in writing.
  • Must be signed by the copyright holder/ owner (or by his representative).
  • The agreement must include a clear indication of:
    • Intention to transfer the work.
    • The rights to be transferred.

Types of rights that may be transferred are divided into two spectrums “Exclusive rights” and “Non-exclusive rights”.

  • Exclusive rights are the rights which once transferred are solely actionable by the assignee and not even the assignor / owner may interfere with the use of such rights.
  • Non-exclusive rights are the rights which though are actionable by the assignee, but the same may be transferred to another party (assignee no. 2) or may be used by the assignor / owner without any infringement to the rights of either of the assignees in the work.

Collecting Societies

A collecting society is an establishment that indulges in the collection of royalties pertaining to copyrighted work in view to distribute them to the actual holders / creators of the copyright. The societies, in doing so facilitate the promotion of creative works and at the same time allows for easy management of the flow of commercial outputs derived from such creative works.

A few of the collecting societies in South Africa are mentioned as under:

  • Dramatic, Artistic and Literary Rights Organisation (DALRO)
    • International Independent Artist Rights Organisation (iIARO)
      • Composers Authors and Publishers Association (CAPASSO)
      • Southern African Music Rights Organisation (SAMRO)
      • The Recording Industry Of South Africa (RISA)
      • South African Music Performance Rights Association (SAMPRA)

The above societies extend its ambit of collection and distribution to the fields of music, video/ cinematography, literature, art and drama and in turn promotes a healthy circulation of profit amongst the creators.

A Civil Suit for copyright infringement in South Africa may be brought against any alleged infringer in the court of law invoking provisions of either:

  • The Copyright Act, 1978
  • The Counterfeit Goods Act, 1997

The court may grant an interim injunction in the initial stages of the Suit, provided that the applicant proves beyond doubt that:

  • Prima facie right which exists with respect to a work.
  • Well found apprehension of irreparable damage / harm in case the interim relief is not invoked.
  • Balance of convenience is in favour of such relief.
  • Applicant is left with just the one option for remedy.

The courts have also categorised the infringement as Direct and Indirect along with the provision of a two-step rational assessment process to check for substantial and objective infringement. A permanent injunction and/or monetary reliefs may also be pursued as Civil remedies to an infringement as long as a well-established right can be shown without any doubt along with an injury/ damage to such right.


[1] http://www.cipc.co.za/files/5913/9452/7970/Copyright_Act.pdf

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