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What is copyright?
The Copyright Act 98 of 1978, as amended, does not
include a definition for "copyright" per se.
Copyright can broadly be described as person’s exclusive
right to do or to authorise the doing of certain acts in
relation to specific works which are subject to
copyright protection and which are owned by that person.
What are the requirements for copyright?
Save for cinematograph films, it is not possible to
obtain registration of copyright works in South Africa.
Copyright subsists automatically, provided that certain
requirements are met.
One of the most important requirements is that the work
must be produced in material form. In this regard, no
copyright subsists in ideas per se, but only in
expressed ideas.
Another very important requirement for copyright is
“originality”. This does not mean that the work must
necessarily be novel. It simply means that the author
must have spent considerable time, skill and efforts to
create the work.
The work must furthermore be listed in Section 2(1) of
the Copyright Act, as a work which may qualify for
copyright protection. This list includes amongst other
things, artistic works, literary works, musical works,
published editions, sound recordings, computer programs
and cinematograph films.
Considering this list, it is possible that, for
instance, a single magazine may incorporate a number of
different and separate types of works, such as artistic
(which includes photographs), literary works and
published editions (which relate to the lay-out of the
contents). If the magazine is published in electronic
format, it may also incorporate a computer program and
possibly also a number of sound recordings and
cinematograph films.
Who owns copyright?
When considering protecting copyright, it is very
important to consider who the author (creator) and owner
are of each specific type of work involved.
The general rule is that the author is the initial owner
of the copyright. However, there are certain important
exceptions. In this regard, it is particularly important
to consider the contribution and capacity of any person
who assisted with the creation of any work involved,
whether or not you paid them for their contribution. In
this regard, it is important to bear in mind that
assignment and exclusive licensing of copyright has to
be done in writing.
If you have incorporated parts of existing copyrighted
works in your work, it is also important to consider
what you copied and whether it is likely that you
infringe on any person’s rights.
It is often advisable and more convenient to assign the
copyright in the different works to a single legal
entity, such as a company or close corporation, to
manage and commercially exploit the product effectively.
This is a good approach to consider when consider
managing or selling copyright vesting in computer
software products.
How do you protect copyright?
Save for cinematograph films, which is possible to
register in South Africa, the most common ways to
protect copyrighted works against infringements would be
to mark works with copyright notices and to enter into
written copyright agreements.
Copyright notices serve as a warning to third parties
that copyright subsists in a work. Generally, copyright
notices should include the following elements:
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If any person made a contribution to your work or you
have incorporated a part of a work belonging to someone
else, written copyright assignment agreements should be
considered to transfer any relevant rights to the owner
of the complete product.
If any person is authorised to use your work or a part
thereof, although it is not compulsory in all instances,
it is advisable to always enter into written agreement
with such licencee or authorised user.
Need further advice or information?
Generally, copyright is a specialised and complex
subject. The comments above are only general remarks and
if you require further information and/or an opinion
regarding any specific aspect, we suggest that you
consider instructing us to prepare a full and proper
opinion. You are also welcome to instruct us, if you
require the preparation of copyright agreements or the
registration of a company or close corporation for this
purpose.
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