Intellectual property is a term used to describe products of the human intellect and include designs, trademarks, patents and copyright. These products are protected by various laws which confer upon the creator of the product, for a limited period, exclusivity as to the right of exploitation thereof and in essence to capitalise financially from the product. Copyright is a subdivision of the bundle of intellectual property rights and is governed by the provisions of the Copyright Act 98 of 1978 (“the Act”).

A common misconception with regards to copyright is that it is a registerable right like patents, designs and trademarks. Copyright however, as provided for in the Act, “subsist” automatically in specified categories of works which are outlined and defined by the Act. The Copyright Act furthermore sets forth the requirements that have to be met in order for copyright to subsist in a work. Classes of copyrighted works include, amongst others, literary works, musical works and computer programs.

Originality of works

The first requirement for copyright to subsist in a work is for the work to be original. The Act does not provide a clear definition of what constitutes an original work and one has to refer to case law in the determination of whether a work is in fact original. To determine whether a work is original, the courts rely on a factual enquiry. Based on the facts presented to the court, it must subjectively decide whether a work is in fact original or not. The courts are of the view that, for a work to be original, it must not have been copied from a prior work of another person and have been produced by the skill and effort of the author thereof, or as the courts put it, as a result of the “sweat of the brow” of the author.

Material form

The second requirement for copyright to subsist is that the work must be reduced to a material form. Copyright does not exist in thoughts, ideas or facts. Copyright protection will only be afforded to the physical or material manifestation or embodiment of elements or concepts once it is created and/or has come into being.

Qualified person

The third requirement is for the author to be a qualified person. This in essence means that the author must be a citizen of the Republic of South Africa or a person who is a resident or domiciled in the Republic. This definition was extended by regulation to include nationals, citizens and/or companies of Berne Convention countries, as the case may be.

What is the duration of copyright?

Copyright duration is not indefinite and, in terms of the Act, the term of protection is determined with reference to the type of work at issue. For example, a literary, musical and artistic work is afforded copyright protection for the lifetime of the author and 50 years from the end of the year in which the author dies. In the event that, prior to the death of the author, the work was never published, performed in public, offered for sale to the public or broadcasted, the term of copyright continues to subsist for a period of 50 years from the end of the year in which the first of the aforementioned acts were done.

Upon expiration of the term of copyright the work falls within the public domain and may be used and/or performed without the authorisation or approval of the copyright owner. This does not mean that a person may copy and/or use the work and pass it off as their own creation. The author of the work must still be acknowledged as the author of such work.

Who owns the copyright?

The Act provides that the owner of a copyrighted work will enjoy exclusive statutory rights, for a limited duration, to exploit the work commercially and/or in the rendering or performance of certain dealings in relation to the specific work. It also grants the copyright owner the right to prevent others from performing those acts without consent from the copyright owner. As a rule, the author of the work is the first owner of any copyright in the work. There are however some exceptions to the rule which are detailed in Section 21 of the Act. Two of the most relevant exceptions prescribed in Section 21 are for works created for payment and works created in the course and scope of an employee’s employment with a company.

Works created for payment

In terms of the Act, a person will be the owner of the copyright in a work if he/she commissioned one of the following acts to be done in the pursuance of commission: the taking of a photograph, painting or drawing of a portrait, making of a gravure, cinematograph film or a sound recording. The person commissioning the aforementioned works must pay or agree to pay for the commissioned work in money or money’s worth. The exception, however, only applies to the works specified above and is not a blanket exception. This means that, when a person is paid to create a work not specified in this specific section, the author of the work remains the first copyright owner of the work.

Employer/employee relationship and Copyright

In the event that a work is created by an employee in the course and scope of his employment, the owner of the copyright subsisting in the work will be the employer. This is however only applicable if there is an employer/employee relationship and not in the case of an independent contractor. This also only covers work that was created in the course or scope of employment.  Anything created by the employee after hours which falls outside the course and scope of his employment will not fall within this section. The employee will therefore be the owner of the copyright in such a work.

Remedies for copyright infringement

The Act makes provision for remedies in the event of infringement of copyright and may include claims for damages, interdicting infringing conduct and the delivery-up of infringing copies of a work. The plaintiff in such infringement proceedings may also, as an alternative to a claim for damages, seek compensation in an amount calculated on the basis of a reasonable royalty which would have been payable by a licensee in respect of the work concerned.

Should you require assistance with the protection of your copyright it is best advised that you contact your attorneys specialising in intellectual property law.

Louw du Toit is an associate in the Intellectual Property Department at Barnard Inc.

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