Copyright is the right to exclude others from copying or making an adaptation of ones copyrighted work. Works eligible for copyright include, artistic, literary and musical works, cinematograph films, sound recordings, broadcasts, programme-carrying signals, published editions, and computer programmes.
Copyright in South Africa is governed by the Copyright Act 98 of 1978.
Ownership of copyright
Copyright is not registered in South Africa and subsists automatically from creation of an eligible work. Copyright in the work will vest in the author unless it is assigned in writing. Exceptions to the rule that copyright in the work will vest in the author are:
Literary and artistic works made in the course of employment with a newspaper, magazine, or similar periodical for purposes of publication in the newspaper, magazine or similar periodical, copyright shall vest with the employer.
Where a person commissions the taking of a photograph, painting or drawing of a portrait, the making of a gravure, cinematograph film or sound record, and pays for it in money or money’s worth the copyright in the work will vest in the person commissioning the work.
Where the work is created by an employee in the course and scope of his or her employment, copyright in the work will vest in the employer.
It is important to note that where works, not specified above, are made under an agreement other than an employment or apprenticeship agreement, copyright in the work will vest in the author unless it is assigned in writing.
Section 15(3A) of the Copyright Act was introduced in 1983 and states
“The copyright in an artistic work of which three-dimensional reproductions were made available, whether inside or outside the Republic, to the public by or with the consent of the copyright owner, shall not be infringed if any person without the consent of the owner makes or makes available to the public three-dimensional reproductions or adaptations of the authorized reproductions, provided the authorized reproductions primarily have a utilitarian purpose and are made by an industrial process.”
This so-called reverse engineering clause provides that so-called authorized reproductions shall not be protected by copyright. For example, where a spare part is made from an engineering drawing and sold to the public a copy made of the spare part by measuring and reproducing it will not infringe the copyright in the engineering drawing from which the first authorized reproduction was made.
Exceptions to infringement of literary and musical works
The Copyright Act provides for general exceptions to the protection of literary and musical works to allow for fair dealings with the works. Copyright of a literary or musical work will not be infringed if the work is used:
or the purposes of research or private study
personal or private use of the person using the work
Copyright will also not be infringed if the literary or musical work is used:
for the purposes of criticism or review of that work or of another work; or
for the purpose of reporting current events
- in a newspaper, magazine or similar periodical; or
- by means of broadcasting or in a cinematography film.
In this case the source must be mentioned, as well as the name of the author if it appears on the work.
The copyright in a literary or musical work which is lawfully available to the public will not be infringed by any quotation of the work, including any quotation from articles in newspapers or periodicals that are in the form of summaries of the work, provided that the quotation is compatible with fair practice, that the extent thereof does not exceed the extent justified by the purpose and that the source is mentioned, as well as the name of the author if it appears on the work