WHAT IS COPYRIGHT? A NEW SERIES BY louis-THE-lawyer
#1 WHAT IS COPYRIGHT?
DEFINITION
Copyright is a legal term used to describe the rights that creators have over their works that are eligible for copyright as defined in the Copyright Act.
COPYRIGHT ACT
Act 78 of 1978 as amended (‘Act’) regulates copyright in South Africa and protects the following works: literary works, musical works, artistic works, cinematograph film works, sound recordings, broadcasts, programme-carrying signals, published editions and computer programs.
PROTECTION IS AUTOMATIC
The creator doesn’t have to register copyright for it to be protected as is the case with patents and trademarks (other than acquired distinctiveness). Copyright protection is automatic the minute that an original creative work takes a tangible form. Copyright applies to works that have some form of creativity embedded. As such a mere list of facts or data cannot be copyright protected. A grocery list for instance, is not a creative act and thus cannot be protected.
There are however certain requirements namely:
- The work must be original and creative.
- It must fall in one of the categories contained in the Act
- It must be original and as a result of the author’s independent, labour skill and effort
- It must be reduced to material form
- The author must be a ‘qualified person’ i.e. a natural person who is resident or domiciled in South Africa (‘SA’) or in any country where the Act applies OR a juristic person incorporated in SA or in any country where the Act applies
CATEGORIES AS PER THE ACT
- ‘Literary works’ include e.g. novels, poems, dramatic works, lectures, speeches, cinematography
- ‘Artistic works’ include e.g. paintings, sculptures, photographs
- ‘Drawings’ of a technical nature
- Computer programs
- Musical works
- Sound recordings
- Broadcasts
DURATION
- Literary, artistic (excluding photographs) & musical works: life of author + 50 years from date of death
- Computer programs, photographs and cinematography: 50 years from date it is lawfully made available to the public or 1st published, whichever is longest
- Sound recordings and broadcasts: 50 years from the end of the year in which 1st broadcast takes place
- Published editions: 50 years from end of the year in which edition is 1st published
WHO IS THE OWNER?
The owner is the author of the work and the Act defines the author as follows:
- Literary, musical & artistic work – the one who first makes or creates the work
- Photograph – the one responsible for the composition
- Cinematograph film or sound recording – the person who makes the arrangements
- Broadcast – first broadcaster
- Computer program – the person who controls the making
- Where the above is generated by a computer - the person who makes the arrangements
- Published edition – the publisher
There are important exceptions to the above:
- Literary & artistic work – where this has been done as part of the author’s employment with a newspaper or magazine then the proprietor thereof will be the owner
- A party may commission someone to take a photograph, paint a portrait, make a cinematograph film or make a sound recording and if the party pays such person, the party will be the owner
- Generally speaking the copyright in any work done by an employee in the course and scope of his/her employment is owned by the employer
Note that any of the above can be altered by agreed contractual terms
Aspects of the above is with acknowledgement of the discussion in https://gdprhub.eu/Article_82_GDPR
© ADV LOUIS NEL
LOUIS-THE-LAWYER
MARCH 20 2024
DISCLAIMER - Each case depends on its own facts & merits - the above does not constitute advice - independent advice should be obtained in all instances
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