What is the basis
The foundation of copyright starts with the premise that a creator has certain exclusive rights to their work and to authorise others to exercise those exclusive rights.
The protection of a creators’ moral (naming) and commercial (remuneration) rights in their work is a human right catered for in copyright legislation.
These moral and commercial rights are the property that copyright protects and are what incentivises creators to produce works and other role players to invest in the publishing and dissemination of works.
There is no requirement to register copyright in South Africa. Copyright is automatic when the following categories of works meet certain criteria:
- Literary works
- Artistic works
- Published editions
- Musical works
- Cinematographic films
- Sound recordings
- Programme-carrying signals
- Computer programmes
The remainder of this website will focus on the three areas of copyright that are applicable to DALRO, namely literary works, artistic works and published editions.
For a literary work, artistic work, and published editions to qualify for copyright, the work must be:
- Original. The quality or artistic merit of the work is not a consideration
- In material form – written down (this includes any form of notation, whether by hand or by printing, typewriting or any similar process), painted, drawn, recorded (including in digital format), or otherwise reduced to material form. Thoughts, concepts or ideas that exist only in the mind do not qualify
- Created by a qualified person, who is:
- A South African citizen or an individual who is domiciled or resident in South Africa
- A legal entity incorporated under South African law
- An individual or legal person domiciled, resident or registered in a country which is a signatory to the Berne Convention
The requirement of being a qualified person does not apply to:
- Buildings or other works of architecture erected in South Africa or artistic works incorporated into a building, or any other permanent structure in South Africa
- Literary and artistic works, and published editions which were published for the first time in South Africa
It is recommended that copyright-protected works are attributed with the © symbol, followed by the year in which the work was created, the creator’s name and the licensing CMO.
The following are not eligible for copyright protection in South Africa:
- common knowledge and information
- choreographic work, unless it has been recorded
- speeches, not until recorded or transcribed
- names, titles, short phrases and expressions (these however may be trademarked)
- recipes, formulas, compounds and prescriptions
Examples of literary works include:
Examples of artistic works include:
|Published editions refers to the first print by whatever process of a particular typographical arrangement of a literary or artistic work
The following principles apply as a general rule:
- the copyright holder is the first creator of a work. Where the creator is deceased, the copyright holder is the estate of the deceased
- where two or more people collaborated in creating a work, they are joint copyright holders
- where a work is adapted, the copyright holders are the creator of the original work and the creator of the derivative work
- if the copyright holder either cannot be identified, or if identified cannot be located or contacted, the work is known as an ‘orphan work’ but the copyright holder is still protected.
A copyright holder may decide to mandate a CMO, like DALRO, to manage their rights.
There are exceptions to the general rule which are specified below. It is important to note that even in relation to the exceptions the moral rights of the creator, being the right to be identified and recognised as the creator of work, remain intact regardless of who the copyright holder is.
Exception applicable to literary works, artistic works and published editions:
- the copyright holder of works made under the direction of the State or International Organisation is the public service officer who is appointed by proclamation in the Gazette
- Unless otherwise agreed, the copyright holder of work made under a contract of employment or apprenticeship is the employer.
|Literary works copyright holders:
|Artistic works copyright holders:
|Published editions copyright holders:
Copyright protects the economic and moral rights of a copyright holder, which can be summarised as the right to authorise the use and reproduction of work. It is important to note that when a work is sold only the physical property is transferred from one party to another. The copyright holder (creator) retains the economic and moral rights afforded by copyright law to the work.
Economic rights refer to the copyright holder’s right to decide which third party can use their work and how they can use the work. The broad categories of economic rights are the right to:
- reproduce or copy a work
- perform, publish, republish or broadcast a work
- adapt or translate a work
- authorise any of the above in relation to a work.
Moral rights refer to a set of rights which are incapable of being separated from the creator of a work. These rights are:
- the right of paternity – the right to claim, be known and acknowledged as the creator of a work
- the right of integrity – the right of the creator to object to or oppose any change, modification or distortion in a work which would be prejudicial or detrimental to the creator’s reputation or honour.
General rule: Copyright lasts for a limited period. Depending on the type of work, copyright subsists in a work for 50 years from the date:
- the work was created; or
- the work was published; or
- date the creator died. In the case of works created by more than one creator, this refers to the death of the creator who dies last.
In the case of works created anonymously or under pseudonyms, it may be difficult to determine the duration of copyright in the work. As a general rule, copyright will subsist in such a work for 50 years from the date the work was published with the copyright holder’s consent, or from the end of the year it is reasonably presumed the creator died; the shorter of the two terms will apply. Should the author’s identity become known within the period of copyright explained above as the general rule, then copyright will subsist in the work according to the provisions for copyright related to that specific type of work.
Once copyright expires, the work is in the public domain. This means the work may be freely used – there is no need to request permission prior to usage. It is important to note that the creator’s moral rights (including to be recognised) remain even if the work is in the public domain.
Copyright subsists in a literary work for the duration of the lifetime of the creator plus 50 years after they’ve died.
However, should the creator predecease the publication of the work, copyright will be calculated as 50 years from the date the work is first published, broadcast or performed in public. It is important to note that, should the work never be published, the work remains perpetually protected by copyright.
Copyright in works made under the direction of the State or International Organisation will subsist from the end of the year in which the work was first published, plus 50 years.
Artistic works (excluding photographs):
General rule: copyright subsists in an artistic work, excluding photographs, for the duration of the lifetime of the creator plus 50 years after they’ve died.
However, should the creator predecease the publication of the work, copyright will be calculated as 50 years from the date the work is first published, broadcast, made available for sale to the public or performed in public. It is important to note that, should the work never be published, the work remains perpetually protected by copyright.
Copyright in artistic works, other than photographs, made under the direction of the State or International Organisation will subsist from the end of the year in which the work was first published, plus 50 years.
General rule: copyright will subsist in the work 50 years from the end of the year in which the work is (i) made available to the public with the consent of the owner of the copyright; or (ii) is first published, whichever term is the longer.
The exception to the general rule: if none of the abovementioned events takes place within the 50 years of making the work, copyright in the work will subsist in the work for 50 years from the end of the year in which the work is made.
|General rule: the copyright therein subsists for 50 years from the end of the year in which the edition is first published.