WHAT IS COPYRIGHT?

Copyright, broadly speaking, is the right given to the creator, author, or other person who may own the copyright of certain types of works, not to have that work copied (reproduced) without authorisation. The types of works covered by copyright are works which may be heard or seen when in a suitable form, and are dealt with more fully below.

Copyright is property and may be sold, assigned or licensed for use by others.

Unlike most other forms of intellectual property, copyright exists automatically and does not have to be registered. In fact, other than in the case of cinematographic films, no registration procedure is available.

WHAT IS PROTECTED BY COPYRIGHT?

Copyright may exist in the following types of works:

• Literary works such as
  novels, stories and poetical works; dramatic works, stage directions, cinematographic film, scenarios and broadcasting scripts; text books, treatises, histories, biographies, essays and articles; letters, reports and memoranda; instruction manuals and advertising literature; lectures, addresses and sermons; and written tables and compilations. Protection is not dependent on the literary quality, mode or form in which the work exists.
  
  
• Computer programs and software
  A computer program is specifically provided for in the Copyright Act in consequence of an amendment which became effective in 1992.

  A computer program is broadly defined as a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result. It does not therefore extend to documents, data, or compilations which are probably still protected as literary works.
  

• Artistic works
  These generally include, irrespective of the artistic quality thereof:
  paintings, sculptures, drawings, engravings and photographs; works of architecture, being either buildings or models of buildings; technical and engineering drawings; or works of artistic craftsmanship.
  
  
• Musical works
  
  
• Cinematographic films
  These are protected in any form, e.g. recorded on magnetic tape or photographic film, so that they can be seen as a moving picture. Soundtracks of cinematographic films are also protected.
  
  
• Sound recordings
  These are also protected in any form, e.g. cassettes or other tapes, compact discs, records, or any other recording medium so that they can be reproduced in the form of sound.
  
  
• Radio and television broadcasts
  These are protected whether they are transmitted by radio or cable, as are programme-carrying signals.

• Originality
  The work must be original. This means that it must have been the product of the creator’s or author’s original skill and effort and should not be copied from another work. It does not matter that the "idea" behind the work was not the creator’s own idea or even that the work subsequently turns out to be the same as another work in existence at the time of creation, and of which the author had no knowledge. Originality basically requires that the work was the result of the creator’s own effort and does not mean novelty or inventiveness as is required in the case of patents.
  
  
• Material form
  The work must be reduced to a material form. This simply means that the work must exist in a tangible form such as a document, magnetic recording, or other optically, mechanically, electronically or other readable form. Copyright cannot, therefore, exist in an idea.
  
  
• Qualified person or publication
  Either the creator or author of the work must be a citizen, resident or domiciliary of South Africa or a legal body incorporated in South Africa (qualified person), or the work must have been first published, broadcast, or disseminated in South Africa.
  
  
• International cooperation
  Copyright also exists in South Africa in respect of works first published or created by persons who are citizens, residents or domiciliaries of, or in, foreign countries which are members of an international arrangement called the Berne Convention.
  
  The members of the Convention include:
  
  Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Central African Republic, Denmark, Egypt, Germany, Finland, France, Great Britain, Greece, Holy See, Iceland, India, Israel, Italy, Japan, Lichtenstein, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Pakistan, Philippines, Poland, Portugal, Republic of Ireland, South Africa, Spain, Sweden, Switzerland, United States of America, Zaire and Zimbabwe.

  (Please note that this list is not exhaustive.)
  

• Exclusion
  Copyright will not subsist in a work which is immoral, obscene, libellous or irreligious.

• where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, a cinematographic film or a sound recording, and pays or agrees to pay for it in money or money’s worth, such person is, subject to certain provisions, the owner of any copyright subsisting in the work;
  
  
• where a work is made in the course of the creator’s or author’s employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work;
  
  
• in the case of a computer program the author and owner of the copyright is "the person who exercised control over the making of the computer program";
  
  
• where the work is made under the direction or control of the State or any international organisation prescribed under the Copyright Act, the State or that international organisation is the owner of any copyright subsisting in the work; and
  
  
• where the creator or author has assigned the copyright to another person.

• literary, musical and artistic works (other than photographs) - 50 years from the end of the year in which the author of the work dies;
  
  
• computer programs - 50 years from the year in which legitimate copies were first made available to the public;
  
  
• published cinematographic films, sound recordings, radio and television broadcasts and other programme-carrying signals - 50 years from the end of the year in which the work was first published or broadcast (cinematographic films not published within 50 years of the year in which they were made - 50 years from the end of the year in which the film was made).

• the use of a literary or musical work for private study, criticism or review of that work; for the reporting of current events, or any publication, broadcast or sound or visual recording used for teaching purposes; provided that mention is made of the name of the author and the source of the extract, and the exception does not apply when the whole of the work, or a substantial part of it, is reproduced;
  
  
• reproducing a lecture or address or other similar work which has been delivered in public, if the reproduction is for information purposes; and
  
  
• official text books of a legislative, administrative or legal nature, speeches of a political nature or delivered in the course of legal proceedings, and news of the day that are mere items of press information.

It was formerly an infringement of copyright to copy a three dimensional article of a primarily utilitarian nature and which had been made by an industrial process from drawings thereof in which copyright existed. This process was known as reverse engineering. This type of act is no longer an infringement of the copyright in the drawings. This does not mean that copying of such articles can now be freely carried out. Great care should be taken before copying such articles as other provisions of the law may prevent it. The reader is advised to consult a patent attorney, agent or other specialist in the field before copying any commercial article.