Copyright protection for works created prior to 1978
South African copyright legislation finds its roots in 1917 when the Legislative Assembly effectively enacted the British Imperial Copyright Act of 1911 as the Third Schedule to the Patents, Designs, Trade Marks and Copyright Act 9 of 1916 Act (“the 1916 Act”).
The 1916 Act officially came into operation on 1 January 1917 and granted protection for creative works such as literary, dramatic, artistic and musical works. The 1916 Act was superseded by the Copyright Act 63 of 1965 (“the 1965 Act”), and the scope of copyright protection was extended by including protectable works not reflecting an original creative effort such as sound recordings, cinematograph films, broadcasts and published editions. Soon thereafter, the presently enacted Copyright Act 98 of 1978 (“the 1978 Act”) superseded the 1965 Act and, after several amendments in 1983, 1992 and 1997, it further extended the scope of copyright protection to include programme-carrying signals and computer programs.
In light of the revolution of works eligible for copyright protection over the years, how does one determine whether a specific work, be it a literary work, artistic work or published edition, created prior to the enactment of the current 1978 Act, is eligible for copyright protection today?
The Appleton v Harnischfeger Corporation  2 All SA 693 (A) (“Appleton”) case is the leading case dealing with the South African copyright transitional provisions. In this matter the Appellate Division had to determine the applicable law in deciding whether technical drawings created in the USA during the years of 1967 and 1968 were eligible for copyright protection in South Africa in 1994.
The court held that when dealing with works made before the commencement of the 1978 Act, the starting point should be the current position under the 1978 Act. Only once it is established that copyright subsists in the work in question under the current 1978 Act, should consideration be given to the earlier legislation (i.e., the 1916 Act or the 1965 Act), which was in force at the time when the work was created, to determine whether copyright would have subsisted in the work under it then.
In the event that the answer to the question of whether copyright subsists in a work under the two Acts differs, the court held that the position under the earlier legislation should prevail. However, if it transpires that copyright did not subsist in terms of the earlier legislation, one must again turn to the 1978 Act to determine whether or not the 1978 Act created retrospective copyright in respect of the specific work, which did not previously exist.
For example, prior to 11 September 1965, published editions were not recognised as a type of work eligible for copyright protection. Nevertheless, the 1965 Act, in section 16, retrospectively granted copyright protection to published editions created prior to the enactment of the 1965 Act, and accordingly retrospective copyright was conferred onto pre-1965 published editions.
In light of the unique nature of copyright granted to the author of a work eligible for copyright protection, the currency of the right often stems over several eras in which different copyright statutes were in force, or will be in force in the future.