Copyright

In most countries, unlike other forms of IP protection provided for by statute, copyright need not be registered. It subsists automatically. There is one exception in South Africa:  the copyright subsisting in cinematograph films, which also vests automatically but can also be registered.)

But despite the fact that there’s no need for registration when it comes to copyright, some countries do allow for voluntary registration. This is intended to solve disputes over ownership or creation, as well as to facilitate financial transactions, sales, and the assignment and/or transfer of rights.

To be eligible for copyright, the subject matter must qualify as one or more of the types of “works” provided for in the relevant copyright legislation. In South Africa, these are:

literary works (for example, novels, poems, tables and manuals);

artistic works (for example, photographs, paintings and drawings);

musical works (for example, music reduced to writing or musical notations preserved in a material form, like a record or a tape);

sound recordings;

cinematograph films;

broadcasts (for example, radio and television);

program-carrying signals (for example, a signal being emitted and passing through a satellite);

published editions (i.e. the first print of a particular typographical arrangement of a literary or musical work); and

computer programs.

As the owner, you enjoy:

economic rights, which allow you to derive financial reward from the use of your copyright by others.  As the author of a copyright work (who is not always the owner), you also enjoy moral rights which protect your non-economic interests, such as the right to claim authorship and object to the distortion of the work.

Most copyright laws state that the owner of copyright has the economic right to authorise or prevent certain uses in relation to a work or, in some cases, to receive remuneration for the use of your work. For example, your economic rights can prohibit or authorise:

reproduction in various forms, such as printed publication or sound recording;

public performance, such as in a play or musical work;

recording;

broadcasting, by radio, cable or satellite;

translation into other languages; and

adaptation, such as a novel into a film screenplay.

The first requirement is that the relevant subject matter constitute a “work” as provided for by the Act.

Second, the work must be original, meaning that it has not been copied from another source. You will have had to invest your own time, money, effort, skill, knowledge and endeavours in creating the work.

Third, the work must be in a material form; i.e. a physical or tangible product must exist. It cannot be a thought or idea; it must have been created and then “fixed”: by being written down, recorded, filmed or captured electronically.

Finally, you must be a “qualified person”; that is, an individual who is a South African citizen or is domiciled or resident in South Africa. In the case of a juristic person, a qualified person is one with a registered place of business in South Africa or a country that is a member of the Berne Convention.

Not anymore. The symbol © is an indication that copyright has been claimed. In the past, some countries had legislation in place that required you to include it but today, very few countries – including ours – include the use of such symbols as a legal requirement.

If you are interested in exploring a copyright matter, please contact us for more information.

The duration of copyright will differ from country to country and depends on the type of work concerned.  In South Africa copyright usually expires after a period of at least 50 years from a certain event.

• In the case of literary, musical and artistic works, copyright endures for 50 years after the death of the author.
• In the case of cinematograph films and computer programs, copyright expires 50 years from the end of the year in which the work was made available to the public, with the consent of the owner of the copyright or after the work is first published, whichever is longer.
• If the work is not made available or published within 50 years after the creation of the work, the copyright in the work expires 50 years after the creation of that work.

When the term of copyright has expired, a work falls into the “public domain” and former restrictions on its use and exploitation cease to have any effect.

When a work is in the “public domain” (also referred to as “commons”), it no longer has a rights owner (of the economic rights, specifically).

This is usually because the term of copyright protection has expired.

For example, the economic rights over Homer’s famous poem “The Odyssey”, have expired (it is estimated to have been composed near the end of the 8th Century BCE) and the work can be used or exploited without the need for authorisation or remuneration.

In some countries, authors can voluntarily include their works in the public domain through a procedure known as “voluntary relinquishment”.

Remember that copyright protection is automatic in all countries party to the Berne Convention. While there may be nuances to the particular national laws applicable, there is generally a high degree of harmony.

But when considering countries that are not party to the Berne Convention, remember that copyright laws apply within the country in which they were passed. As such, if you wish to protect your work internationally, you must ensure that you comply with the legal requirements in those countries.

There is no searchable international registry of copyright-protected works. This is because, as a general rule, copyright protection is automatic and does not depend on registration. In some countries, however, you may encounter a voluntary copyright registry/depositary – and registering your work can be a smart choice as it can assist you in the case of a dispute.

Before taking any steps, carefully assess whether the reproduction is in fact an infringement of your copyright. If you think it is, try to identify the person responsible and only if it is impossible or inappropriate to solve the problem by informal means, seek assistance in obtaining legal relief from a court or other authority.

It is usually possible to bring a claim before a civil court for monetary compensation and also to prevent the continuation or repetition of the infringement. Before taking this step, however, it is advisable to send a formal notification to the alleged infringer, requesting that they stop the infringement and/or to pay compensation.

Alternatively, if the unauthorised reproduction amounts to the criminal offence of copyright piracy, you can submit a complaint to the police, public prosecutor or other competent authority in line with local law. At this stage, it is usually a good idea to seek legal   assistance.

If you are interested in exploring a copyright matter, please contact us for more information.