Copyright Protection in South Africa
The following information is supplied for the convenience of our clients or potential clients and is to be considered as a brief and simplified outline only. As the Copyright Act is complex and the nature of works varies, it is virtually impossible to provide a thorough synopsis of the Copyright Act in the limited space afforded. Should you have more specific questions regarding Copyright, please contact us.
Definition and Philosophy
Copyright is the exclusive right in relation to work embodying intellectual content to do certain acts (or authorise others to do these acts) so that the work can be exploited for commercial gain.
Copyright affords a creator of original work, a qualified monopoly to use and exploit his work, with the aim of rewarding and compensating the creator for his effort, creativity and talent utilised and providing an incentive to use his talents and efforts to create further and improved works in the future.
Works eligible for Copyright Protection
A qualified person must have expended skill and effort to create a work that exists in a material form. South African citizens, residents and persons domiciled in South Africa are qualified persons as are citizens, etc of certain other countries that are signatories to the Berne Convention and listed in the Trade Marks Act. Protection is also afforded to works that, although created by persons that are not “qualified”, are first published in South Africa (or the other listed countries).
The types of works eligible for protection are:
- Literary works
- Musical works
- Artistic works
- Sound recordings
- Cinematographic films
- Sound and television broadcasts
- Program-carrying signals
- Published editions
- Computer program
Establishment of Copyright
Where a work is eligible for copyright protection, copyright automatically comes into existence. It is not possible to acquire copyright through registration. Indeed, it is not possible to register copyright (except copyright in cinematographic films, and this registration serves merely as a confirmation of existing rights).
We do, however, recommend that creators of works keep their “drafts” so that these may be used if it later becomes necessary to prove that they expended skill and effort in the creation of the work.
Where possible, we also recommend that the work be marked with the copyright sign (©) as this will assist to prove that infringers were aware of the existence of copyright in the work and will allow the owner of the copyright to claim damages from infringers.