Understanding Copyright

In our business it is very good to be aware and legal-wise with regards to copyright.  As both users and producers of copyrighted works, SABC relies on copyright and has an interest in fostering respect for copyright and in promoting the availability and use of copyrighted works for research, education and broadcast.  Copyright law is increasingly becoming the focus of significant attention in society, and consequently, SABC may wish to provide information about copyright law as part of their educational activities. Copyright infringement is unlawful, and the adoption of a copyright policy affords SABC an opportunity to make this point clear. 

WHAT IS COPYRIGHT?

Copyright is the right to copy. It is a legal device that provides the creator of a work of art or literature, or a work that conveys information or ideas, the right to control how the work is used. It is a property right given to authors or creators of "works", e.g. literary works, artistic works, musical works, sound recordings, films and broadcasts or computer programs, to control the copying or exploitation of their work. As a property right it can be transferred by sale, gift or legacy and by licence issued in order to duplicate. Even though laws differ between countries, the general principles are the same and require the permission of the copyright owner before a work can be copied or reproduced regardless of whether that be through electronic or conventional means.

Copyright gives the owner the legal right to do certain things to the work; for example, making a copy, publishing, broadcasting or giving a public performance and making adaptations to the work. Anyone else who does any of these things without the permission of the owner infringes copyright and may be sued by the owner for that infringement.

WHO OWNS COPYRIGHT IN A WORK?

The author of a copyright work is generally the person who makes or creates the work, but this is not always the case. The word ‘Author’ is defined in the act as follows:

•        In respect of a literary, musical or artistic work, to mean the person who first makes or creates           the work;
•        For a photograph, to mean the person who is responsible for the composition of the photograph;
•        For a programme-carrying signal, to mean the first person emitting the signal to a satellite;
•        For a published edition, to mean the publisher of the edition;
•        For a computer program, to mean the person who exercised control over the making of the           computer program.

The author or creator of the work is the owner of the copyright, unless the person is in employment, and the work is created in the course and scope of the employment, in which case the Employer holds the copyright. It is, however, possible for the creator of the work to share copyright as in joint authorship, or to contractually assign in writing, the copyright or part thereof, to a publisher or other third party, either on an outright basis or for a limited purpose or period.

ESTABLISHING COPYRIGHT

For a work to qualify for copyright protection, it has to be original in the sense of not being a copy of another work, and it must exist in material form. There is no copyright in ideas because something as ethereal as an idea cannot receive legal protection, but as the idea is recorded in material form (in writing, on a canvas, as a photograph) copyright automatically arises. No formalities are required, and the work does not have to be registered.

DURATION OF COPYRIGHT

In South Africa, copyright protection in literary, musical and artistic works lasts for the duration of the life of an author and 50 years after the author’s death. In the case of works of joint or multiple authorship, protection continues until 50 years after the death of the longest surviving author. If the work has not been published before the author dies the term of copyright continues to subsist for 50 years after the end of the year in which publication does take place. If publication never takes place, the duration of copyright is perpetual.

In many other countries, the countries of the European Union, for instance, and the United States, the duration of copyright is 70 years after the death of the author.

WHAT DOES COPYRIGHT PROTECT?

Copyright provides copyright owners fairly substantial control over their work. The four basic protections are:

•        The right to make copies of the work;
•        The right to sell or otherwise distribute copies of the work;
•        The right to prepare new works based on the protected work;
•        The right to perform the protected work (such as a stage play or painting) in public.

WHICH WORKS ARE PROTECTED BY COPYRIGHT?

Copyright applies to all original works which have been reduced to material form and this may include any means of recording. According to Section 2(1) of the Copyright Act No. 98 of 1978, copyright protects works "fixed in any tangible medium of expression" in these categories:
•        Literary works
•        Musical works
•        Artistic works
•        Cinematograph films
•        Sound recordings
•        Broadcasts
•        Programme-carrying signals
•        Published editions
•        Computer programs

WHAT IS ELIGIBLE FOR COPYRIGHT PROTECTION?

Through the years, certain classes of copyright have been developed, rather artificially, to describe works eligible for copyright protection. In general, any original work made by a qualified person is eligible for copyright protection. Originality refers to the fact that the author must have created the work through the application of the author's own creativity and labour. A qualified person refers to any national or resident of South Africa or a Berne Convention country. Please contact us, should you require an updated list of Berne Convention countries.

In addition, the work that is to enjoy copyright protection must have been reduced to a material form. In other words, mere ideas are not considered protectable by way of copyright. The author must have written down or recorded the creation in a material form for copyright to come into existence.

As technology has progressed, the types of works eligible for copyright have expanded to include new creations which were previously unknown, such as computer programs and broadcasts. In terms of the South African Copyright Act (No. 98 of 1978), the following works, if original, are eligible for copyright protection:

• Literary works (eg. novels, poems, textbooks, letters, reports, lectures, speeches)
• Musical works
• Artistic works (eg. paintings, sculptures, drawings, photographs)
• Cinematograph films
• Sound recordings
• Broadcasts (electromagnetic transmissions intended for reception by the public)
• Programme-carrying signals (a programme signal which passes through a satellite)
• Published editions of books (usually the first print of a literary or musical work)
• Computer programs (instructions directing the operation of a computer)

Each type of copyrighted work is defined specifically in the Act. It isn't always easy to identify which type of "work" a creation resorts under and it may be that one work may embody different types of copyright protection. This is a specialized area of intellectual property law and should there be any confusion as to which type of work your creation resorts under, or you need advice on the legal use of copyrighted works, please feel free to contact us.

WHAT ARE MORAL RIGHTS?

The author of a work has the right to claim authorship and to object to any distortion, mutilation or other modification of the work where such action is or would be prejudicial to his or her honour or reputation. This means that the author has the right to be identified as the author (right of paternity) and the right to object to any adaptation of the work which would reflect badly on him or her (the right to integrity)

COPYRIGHT VIOLATION

Only the copyright owner may do, or authorise the doing, of the following in respect of work: reproduce it in any manner or form; publish it; perform it in public; broadcast it; transmit it in a diffusion service; or adapt it. Anyone who performs any of these actions without permission in respect of the work has infringed copyright

WHY MUST THE SABC BE CONCERNED ABOUT COPYRIGHT?

As both users and producers of copyrighted works, SABC relies on copyright and have an interest in fostering respect for copyright and in promoting the availability and use of copyrighted works for research, education and broadcast.  Copyright law increasingly is becoming the focus of significant attention in society, and consequently, SABC may wish to provide information about copyright law as part of their educational activities. Copyright infringement is unlawful, and the adoption of a copyright policy affords SABC an opportunity to make this point clear. 

THE DIFFERENCE BETWEEN COPYRIGHT AND OTHER INTELLECTUAL PROPERTY

Copyright in South Africa, like in most other countries, differs from other forms of intellectual property in that it is not a right that needs to be registered (except in the USA).  Unlike patents, trademarks or registered designs, copyright vests in the author of a work once the work is created in a material form.

THE AUTHOR OF COPYRIGHT IN TERMS OF THE SOUTH AFRICAN COPYRIGHT ACT

The authorship of copyrighted works is frequently disputed. The South African Copyright Act provides very clear guidelines as to who shall be considered authors of any particular types of copyrighted works. The following is a summary of these guidelines:

• Literary, musical or artistic works - the person who first makes or creates the work
• Photographs - the person responsible for the composition of the photograph
• Sound recordings - the person who made arrangements for the making of the recording
• Films - the person who made arrangements for the making of the film
• Broadcasts - the first broadcaster
• Published editions - the publisher of the edition
• Programme-carrying signals - the first person emitting the signal to a satellite
• Computer programs - the person who exercised control over the making of the program

EXCEPTIONS TO AUTHORSHIP OF COPYRIGHTED WORKS IN TERMS OF THE SOUTH AFRICAN COPYRIGHT ACT

The author is usually regarded as the first owner of the work. However, there are exceptions to this. These include:

• Literary or artistic works made by an author when employed by a newspaper, magazine or the like. In this case, authorship vests in the publisher. However, authorship vests in the author for the unused sections.
• If someone commissions and pays for the taking of a photograph, painting or drawing of a portrait
• If someone commissions and pays for the making of a film or sound recording

If the work was created in the course of an author's employment, the authorship vests in the employer

DURATION OF COPYRIGHT IN TERMS OF THE SOUTH AFRICAN COPYRIGHT ACT

This depends on the type of work that has been created. Generally, the term of copyright is 50 years, subject to the following:

• Literary, musical or artistic works - copyright exists for the life of the author plus fifty years following death, calculated from the end of the year the author died in or 50 years from the date of first publication, performance in public, offering for sale of records thereof or the broadcasting thereof , whichever is earlier
• Films and photographs - fifty years from the end of the year in which the work is made publicly available, or the end of the year in which the work is first published, whichever is longer, or fifty years from the end of the year in which the work is made
• Sound recordings - fifty years from the end of the year in which the recording is first published
• Broadcasts - fifty years from the end of the year in which the broadcast first takes place
• Programme-carrying signals - fifty years from the end of the year in which the signals are emitted to a satellite
• Published editions - fifty years from the end of the year in which the edition is published

TRANSFER OF COPYRIGHT

Much like other property, copyright can be transferred by assignment, testamentary disposition or by operation of law. Copyright can also be licensed to a licensee for royalties. It is important to note that an assignment and an exclusive license (which precludes anyone else, including the author from using the creation) must be in writing and signed by the assignor to be valid. A non-exclusive license may be written or oral, or inferred from the conduct of the parties.

 

 Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device. Lawrence Lessig

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