Herman Blignaut May 16 2022 Copyright in South Africa: FAQs Spoor & Fisher | Intellectual Property - South Africa Herman Blignaut Intellectual Property Must copyright be registered in South Africa?What types of content enjoy copyright protection in South Africa?What rights does copyright give the owner?What are the requirements for copyright protection in South Africa?What is the © symbol? Must it be included in a copyright work?What is the duration of copyright in South Africa?What is a work in the "public domain"?Can copyright be used to protect a work internationally?What should a copyright owner do if their work has been reproduced without permission?This article is part of a series answering FAQs about IP rights in South Africa.(1)Must copyright be registered in South Africa?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.What types of content enjoy copyright protection in South Africa?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 (eg, novels, poems, tables and manuals);artistic works (eg, photographs, paintings and drawings);musical works (eg, music reduced to writing or musical notations preserved in a material form, such as a record or a tape);sound recordings;cinematograph films;broadcasts (eg, radio and television);programme-carrying signals (eg, a signal being emitted and passing through a satellite);published editions (ie, the first print of a particular typographical arrangement of a literary or musical work); andcomputer programs.What rights does copyright give the owner?The copyright owner enjoys economic rights, which enables them to derive financial rewards from the use of their copyright by others. The author of a copyright work (which is not always the owner) also enjoys moral rights, which protect 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 their work. For example, the copyright owner's 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; andadaptation, such as a novel into a film screenplay.What are the requirements for copyright protection in South Africa?The first requirement is that the relevant subject matter constitute a "work" as provided for by the Copyright Act.Second, the work must be original, meaning that it has not been copied from another source. The author will have had to invest their own time, money, effort, skill, knowledge and endeavours in creating the work.Third, the work must be in a material form – that is, 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, the author 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.What is the © symbol? Must it be included in a copyright work?Not anymore. The © symbol is an indication that copyright has been claimed. In the past, some countries had legislation in place that required the owner to include it but today, very few countries include the use of such symbols as a legal requirement. It is not a legal requirement in South Africa.What is the duration of copyright in South Africa?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.What is a work in the "public domain"?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, both the film and stage production of The Lion King feature the song "The Lion Sleeps Tonight", which has its roots in "Mbube", originally written and recorded in 1939 by South African singer and migrant worker Solomon Linda. In 2012, "Mbube" fell into the public domain under the copyright laws of South Africa, and the work can be used without the need for a licence or remuneration. Derivative works, such as "The Lion Sleeps Tonight", however, may still be subject to copyright.In some countries, authors can voluntarily include their works in the public domain through a procedure known as "voluntary relinquishment".Can copyright be used to protect a work internationally?Copyright protection is automatic in all countries party to the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention). While there may be nuances to the particular national laws applicable, there is generally a high degree of harmony.With regard to countries that are not party to the Berne Convention, copyright laws apply within the country in which they were passed. As such, if a copyright owner wishes to protect their work internationally, they must ensure that they comply with the legal requirements in those countries.What should a copyright owner do if their work has been reproduced without permission?Before taking any steps, the copyright owner should carefully assess whether the reproduction is in fact an infringement of their copyright. If so, the copyright owner should try to identify the person responsible and – if it is impossible or inappropriate to solve the problem by informal means – seek assistance in obtaining legal relief from a South African 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, the copyright owner can submit a complaint to the police, public prosecutor or other competent authority in line with South African law. At this stage, it is usually a good idea to seek legal assistance.For further information on this topic please contact Herman Blignaut at Spoor & Fisher by telephone (+27 12 676 1111) or email ([email protected]). The Spoor & Fisher website can be accessed at www.spoor.com.Endnotes(1) For earlier articles in the series, see:"Obtaining patent protection in South Africa: FAQs"; and"Trademarks in South Africa: FAQs".