Our copyright team operates both in South Africa and internationally using their extensive experience, skill and understanding of what is required to successfully assist clients. In South Africa, copyright generally cannot be registered; however, in other jurisdictions it can and we have the knowledge and experience to ensure the appropriate steps are taken to ensure competent copyright protection within each jurisdiction.
Copyright law provides protection for various types of works including:
- literary works
- artistic works
- musical works
- dramatic works
- computer programs
- cinematograph films
- sound recordings
- published editions
- broadcasts; and
- programme-carrying signals
Requirements for subsistence
There is no provision in South African law for registration of copyright, except in the case of cinematograph films. As such, copyright comes into subsistence automatically, provided that certain requirements are met, namely:
- the work must be original;
- it must exist in material form; and
- the author must be a ‘qualified person’.
Ownership of copyright
Ownership of copyright generally vests with the author of the work, although the South African Copyright Act 98 of 1978 (Copyright Act) does provide for certain exceptions to this general rule, for example:
- where a literary or artistic work is created by a person in the course and scope of his employment the employer will own the copyright in the work;
- where a person commissions the taking of a photograph, the painting or drawing of a portrait or the making of a cinematograph film or sound recording, and pays, or agrees to pay for it in money or money’s worth, the copyright in the work will be owned by the person who commissioned it
There are further exceptions to the general rule regarding ownership of copyright but these are the ones that are encountered most frequently.
Registration of copyright in cinematograph films
Cinematograph films are the only types of works in which it is possible to register copyright in South Africa. The registration of copyright in a film does not in any way change or extend the rights of copyright that subsist in the film, but registration of copyright in a film serves as prima facie proof of the existence of copyright and therefore removes the burden of proving this from the holder in cases of infringement.
Copyright subsists in most types of works for a period of 50 years from the end of the year of the death of the author or, if the identity of the author is unknown, for 50 years from the date of the first lawful publication of the work.
It is possible to transfer (“assign”) ownership of copyright. In order to be valid, an assignment of copyright must be in writing and signed by or on behalf of the assignor.
It is possible to license the use of a copyrighted work. A licence may be exclusive, sole or non-exclusive. Non-exclusive licenses may be written, oral or even inferred by conduct, however, in order to be valid an exclusive licence must be in writing and signed by or on behalf of the licensor.
Copyright is generally infringed by the making of unauthorised copies (reproductions) or adaptations of a work. Copyright can also be infringed by the import, distribution, sale or hire, or offering for sale or hire, infringing copies of a work.
Copyright infringement can take multiple forms. For example, copyright could be infringed by copying or adapting, without permission, a third party’s:
- PowerPoint presentation
- content off their website
- photograph or image from the internet
This is by no means an exhaustive list but illustrates instances where parties often don’t realise that they are infringing copyright. Moreover, copyright infringement can have drastic consequences, with the Copyright Act making provision for both civil and criminal liability and substantial penalties.
One of the major advantages of copyright (as opposed to most other forms of intellectual property) is that it can be enforced in many other countries without the need for registration. Therefore, if a third party located abroad is found to be infringing a party’s copyright, it may be possible to institute copyright infringement proceeding in a foreign country, without having ever traded in that country.
Commercial Dispute Resolution, Arbitration & Litigation
We are highly skilled and experienced in all aspects of mediation, arbitration, High Court litigation, particularly in the fields of commercial and corporate litigation.
We assist our clients with:
- Shareholder disputes
- Disputes concerning corporate governance and directors’ duties
- Disputes concerning company acquisitions and take-overs
- Commercial fraud
- Restraints of trade
- Enforcement of commercial contracts
- Confidential information claims
- Product liability claims
- Commercial claims and disputes relating to goods sold or services rendered
Company name objections
- Company and close corporation name objections
- Protection of registered trade marks from infringing company/close corporation names
- Government Gazette watch service, for the advertisement of infringing company/close corporation names