Copyright - Cinematograph films

What is a "cinematograph film"?
The Copyright Act 98 of 1978 lists "cinematograph films" as works which are eligible for copyright protection. The Copyright Act defines a "cinematograph film" as "any fixation or storage by any means whatsoever on film or any other material of data, signals or a sequence of images capable, when used in conjunction with any other mechanical, electronic or other device, of being seen as a moving picture and of reproduction, and includes the sounds embodied in a sound-track associated with the film, but shall not include a computer program".

Who owns copyright?
In terms of the Copyright Act, the author/creator of a cinematographic film is the person by whom the arrangements for the making of the film were made. However, the author/creator of a film and the copyright owner is not necessarily the same person. Where someone commissions the making of a cinematograph film or where the author of the cinematograph film is an employee of the commissioner, such person could be the owner of the copyright in the film.

Scope and nature of copyright:
Copyright in a cinematograph film vests the exclusive right to do or to authorise the doing of a variety of acts in relation to a film. This includes reproduction of the film, the making of still photographs, causing the film to be seen and the soundtrack to be heard in public, broadcasting the film, making an adaptation of the film and/or letting out copies of the film.

Generally, copyright is infringed, if any person performs any of these acts which fall within the exclusive rights of the copyright owner, without its authorisation or consent.

There are, however, general exceptions from this general rule. In this regard, the Copyright Act inter alia provides that copyright shall not be infringed by any "fair dealing" with a cinematograph film for the following purposes:

• criticism or review of the film or of another work
  

• reporting current events
  

• judicial proceedings or a report thereof
  

• quotations (certain conditions apply)
  

• illustrations for teaching purposes (certain conditions apply)

• bona fide demonstration of radio or television receivers or any type of recording or playback equipment to a client by a dealer in such equipment

Copyright in a "literary work" vests inter alia the exclusive right to broadcast or to authorise the broadcasting of such work. In this regard, authorisation to use a literary work as the basis or as a contribution towards the making of a film, in the absence of an agreement to the contrary, includes the right to broadcast such film. Where sounds embodied in a sound-track associated with a cinematograph film are also embodied in a record other than such a sound-track or in a record derived directly or indirectly from such a sound-track, the copyright in the film shall not be infringed by the use of that record.

How to protect films:
Cinematograph films are the only copyright works that can be registered in South Africa. Such registrations are governed by the Registration of Copyright in Cinematograph Films Act 62 of 1977 and the Regulations relating thereto.

The registration of copyright in cinematograph films does not relate to subsistence of copyright in films. In this regard, the general copyright requirements apply. The main purpose of registration is to easily and effectively provide film copyright owners with proof of their rights which would assist them when necessary to enforce their rights in case of a dispute or litigation.

An application for registration of copyright in a cinematograph film must comprise of the documents prescribed in the Regulations. The most substantial of these documents, is a Statement of Case that must contain particulars such as a brief description of the story or subject matter, the dates and places when and where the film was made and the names of the director, principle players and narrator. The Statement of Case must be submitted in Affidavit format.

The Registrar accepts the application, if he is satisfied that all the prescribed requirements have been met, that copyright indeed subsists in the film and that the applicant for registration is the current owner of such copyright. The application is then published in the Patent Journal and open for opposition by third parties for a period of one month.

If there is no opposition or if the opposition has been successfully resisted, the Registrar will issue the Certificate of Registration. A Certificate of Registration issued by the Registrar of Copyright serves as prima facie prove that copyright subsists in that film. In case of a dispute involving a non-registered film, such facts would have to be proven by obtaining admissible evidence from individuals who have personal knowledge of the facts, which is a difficult, time consuming and costly process. In court proceedings relating to a registered film, it will also be presumed that the alleged infringers had knowledge of the registration of the film. The fact that it is easier to prove copyright in a registered film, as oppose to other copyrighted works, deters film pirates from infringing copyright in registered films.

The rights of an exclusive licencee could also be recorded on the Register. As soon as such licence is recorded, any certificate in respect of the film issued by the Registrar should reflect the status of that licencee. The recordal of someone as a licencee on the Register will expire when the copyright in the film and/or the licencee's licence expires and the copyright owner, licencee or interested third party can then cancel such entry on the Register. Assignment of copyright in a registered film should also be recorded on the Register.

Term of copyright:
Copyright in cinematograph films exists for 50 years from the end of the year in which the work is made available to the public with the consent of the copyright owner. If this fails to happen within 50 years after the making of the film, the copyright expires 50 years from the end of the year in which the film was made. Generally speaking, in the case of a registered film, registration will endure until the copyright expires.

Need further advice?
The above comments are only general remarks. You are welcome to contact us, if you need assistance with the registration of a cinematograph film, assignment or licensing of copyright in a registered film. 

Tel no: +27 (0) 12 664 8960 Fax no: + 27 (0) 86 633 2977 or +27 (0) 12 644 2515