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Understanding Copyright

Copyright law can be confusing. The information below will help you to understand more about copyright and how it works.

What is Copyright?

Copyright controls how you use creative works made by other people. It gives exclusive rights to the original creator to receive payment in the form of royalties for all reproductions and use of the work. Copyright is a branch of Intellectual Property.

What is Intellectual Property?

Intellectual property is the term used to describe the products of the mind, which embrace all forms of creative expression and technological innovation. Most countries protect intellectual property with laws of copyright, patents, trademarks and designs.

Copyright in South Africa

The South African Copyright Act 98 of 1978, as amended, governs all aspects of copyright in South Africa. It lays out the rules for what is protected, what it is protected from and how long it is protected for.

Copyright is territorial. This means that the rights that are protected, the method of protection and the period of protection differ from country to country. However, the principle of copyright protection is common to all the nations which are signatories to the Berne Convention and the Universal Copyright Convention.

These nations (of which South Africa is one) are obliged to incorporate certain basic principles in their national laws and are bound to offer reciprocal treatment to works that come from other nations observing the Berne Convention.

Types of Work Protected by the Copyright Act

Protected works (works eligible for copyright) are:

  • literary works
  • musical works
  • artistic works
  • cinematograph films
  • sound recordings
  • broadcasts
  • programme-carrying signals
  • published editions
  • computer programs

The three categories of protected works most relevant to DALRO are literary works, artistic works and published editions.

Literary works include virtually every form of writing, in whatever mode or form expressed

Artistic works include all paintings, sculptures, drawings, engravings and photographs qualify.

Published editions refer to the typographical arrangement of a literary work. Every book, for instance, contains two copyrights: one is the copyright in the expression of ideas which usually belongs to the author (literary work), and the other is the copyright in the typographical arrangement, which belongs to the publisher. There may also be further separate copyrights in the artwork contained in a book.

Establishing a 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 but if the idea is recorded in material form (in writing, on a canvas, as a photograph) copyright automatically applies. No formalities are required, and the work does not have to be registered.

Ownership of Copyright

Copyright in a literary, musical or artistic work generally belongs to the author of the work. But there are exceptions, mainly due to circumstances of employment. For instance, if someone creates a work during the course of their employment, under a contract of service, copyright belongs to the employer. Employer and employee can, however, change this by mutual consent, through a contract. Copyright in a published edition belongs to the publisher.

Copyright Licences

A copyright license grants the license holder the right to exercise such right as are granted through a license agreement. Tor instance, a licence may be granted to reproduce the pages of a book. However, the owner of the copyright remains the owner of the rights in question.

Licenses may be exclusive or non-exclusive.

Copyright Amendment Bill 2015

DALRO Submission on Copyright Amendment Bill 2015

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.

Assignment of a Copyright

It is possible for a copyright owner to transfer some or all of his rights under copyright to another person or to a company by assignment. The copyrights in question are then the property of the new owner and the original owner can no longer exercise rights to the work.

Assignment can be for the duration of the copyright, for instance where the rights are sold, or for a specific period, as would normally be the case when the work is given to a publisher.

Fair Dealing

The South African Copyright Act sets out general exceptions from the protection of literary works. The fair dealing section allows a user to copy, for their own study or research or private use, as much of the work as they need to meet their reasonable needs, without seeking permission from the copyright owner or paying compensation.

As well as research or private study, personal or private use, the South African Copyright Act considers it fair dealing to use a work for the purposes of criticism or review, or for the purpose of reporting current events in a newspaper, journal or magazine. You may quote in print from a published copyright protected work in certain circumstances - but, again, no limits are specified. You must always acknowledge the source and the author.

South African copyright law doesn't specify how much you may copy within the bounds of fair dealing, but it is clear that it must be for your own use. So, multiple copies are outside of fair dealing.

Fair use is based on:

  • The purpose and character of the use
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the whole
  • The effect of the use on the potential market for the work

Remember: If your copy deprives the rightsholder of income, then it's not fair, and you can't regard it as fair dealing.



Partners & Associates

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  • bsa
  • samro