15 July 2022
With technology and accessibility to creative tools, platforms and social media expanding the ease and accessibility of creating anything from your own music to a short film and everything in between, it raises the question of copyright protection and how far it goes to protect your creative output in a world where sharing, copying, linking and passing on of information is only a click away.
In our digital age the accessibility to literature, music and other creative works has increasingly blurred the lines of acceptable use and rightly begs the question of how far does South African copyright law protect our local authors and creators.
In South Africa, copyright is governed by the Copyright Act 98 of 1978 (Act) and its related regulations. Copyright is the exclusive right of the author (as owner) to publish, perform, broadcast, transmit, adapt, reproduce or distribute any work to the public. The owner of copyright can also authorise another by assigning, licensing or otherwise transmitting the aforementioned rights to another person. Copyright protection however does not extend to the use of a work in research, private study or reporting on current events, provided that the source is referred to and that a significant part of the work is not copied or if used for purposes of judicial proceedings or for teaching, etc.
The following works enjoy copyright protection in South Africa, namely literary works; musical works; artistic works; cinematograph films; sound recordings; broadcasts; programme-carrying signals; published editions; and computer programs.
With the exception of cinematograph film, there is no structure or system for the registration of copyright in South Africa. The subsistence of copyright occurs by operation of law subject to certain requirements being met. Firstly, the work must be original. It is not required that the work be novel or unique, but that the author must have applied skill, time and labour when creating the work. Secondly, the work must be reduced to a material form except a broadcast or programmecarrying signal. Thirdly, in order to be eligible for copyright, the author or co-author of a work must be a qualified person, i.e., a natural or juristic person with South African citizenship, domicilium or residence, or be incorporated in South Africa, as applicable. Copyright also subsists in the following work: architectural work that is erected in South Africa; a broadcast that is made in South Africa; and literary, musical or artistic work, including a sound recording, a cinematograph film, or a published edition, that is first published in South Africa.
The commencement of the term of copyright protection varies depending on the type of work, but generally endures for 50 years. For literary, musical or artistic works, the term is the lifetime of the author plus 50 years after the end of the year of the death of the author, or the last dying author, in the case of joint authorship. For a cinematograph film, photograph or computer program, the term is 50 years after the work was consensually published or, if not published, 50 years after the work was made. For a sound recording or published edition, the term is 50 years after the end of the year in which the recording or edition was first published. For a broadcast, the term is 50 years from the end of the year of the first broadcast. For a programme-carrying signal, it is 50 years from the end of the year of the first signal emission.
Now that we have established which works carry copyright protection as well as the period of such protection, it is important to turn to what happens in the event of an infringement of this right.
Primary or direct copyright infringement occurs when a person who is not the copyright owner or licensee of any work, with or without knowledge, does, or causes to be done, any of the acts which fall within the exclusive right of the copyright owner. Secondary or indirect copyright infringement occurs when a person imports goods for purposes other than private use and trades or distributes such goods in a manner that prejudicially affects the copyright owner thereof. Secondary copyright infringement applies only insofar as the perpetrator is aware that their actions constitute an infringement.
In civil proceedings, the remedies for copyright infringement include a prohibitory interdict, the delivery of the infringing copies, the institution of a claim for damages or, in lieu of damages, the payment of a reasonable royalty fee. Section 20 of the Act also allows the author to seek recourse for the infringement of their moral rights, i.e., their reputation or honour, even if they are no longer the copyright owner.
What should be clear from the above is that application of the Act is wide enough to extend copyright protection to a great variety of work and there is also more than sufficient protection should your copyright be infringed. That said, even though copyright generally vests automatically, there are still steps a creator can take to evidence their copyright more emphatically, including the conditions for use of his/her creative works. If you are concerned about protecting your creative works, make contact with an intellectual property specialist who can provide advice on how best to note, protect and enforce your copyright.
Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).