De Kock Attorneys Copyright

Copyright – Introduction

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:

  • The name of the owner
  • The international copyright symbol ie ©
  • The year in which the work was created

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 contact 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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