The Copyright Act does not require registration in order to acquire copyright for a particular work. Instead, copyright subsists automatically once a work has been completed, provided that certain requirements have been met.

Copyright requirements

In order for copyright to subsist, a work must be original. This does not mean that it must be inventive as such – rather, it must have been created as a result of the author's own original labour and skill. Further, the work must be in writing or a material form (ie, it must have a tangible existence, as there can be no copyright in ideas or concepts).

In addition, the author must have been a qualified person when the work or a substantial part thereof was created. In other words, if the author is a natural person, they must be:

  • a South African citizen;
  • domiciled in South Africa; or
  • a citizen of a Berne Convention country.

If the author is a juristic person, it must be a body incorporated under the laws of South Africa or a Berne Convention country. If the author is not a qualified person, the work must first be published in or made in South Africa or a Berne Convention country.

Further, the Copyright Act confers copyright only in respect of certain specified categories, including:

  • literary works;
  • musical works;
  • artistic works;
  • cinematograph films;
  • sound recordings;
  • broadcasts;
  • program-carrying signals;
  • published editions; and
  • computer programs.

Literary works

A novel (or story) would fall within the category of both literary works and published editions (once published).

The term of copyright conferred in the case of a literary work is 50 years from the end of the year in which the author dies, provided that – before the author's death – the work or an adaptation thereof was not:

  • published;
  • performed in public;
  • offered for sale to the public; or
  • broadcasted.

The term of copyright will continue to subsist for 50 years from the end of the year in which the first of one of the above acts occurs.

Authors must also consider whether they intend to publish a book themselves or enter into a publishing agreement with a publisher. In the latter case, the publisher will likely take assignment of the copyright and the author will generally have to agree to the respective terms and conditions of the publisher's standard agreement.

The duration of copyright for published editions is 50 years from the end of the year in which the edition is first published. In the case of anonymous or pseudonymous works, the copyright therein will subsist until the end of the year in which the work was made available to the public with the copyright owner's consent or the end of the year in which it is reasonable to presume that the author died – whichever is shortest.

Under the Copyright Act, authors generally own the copyright in works that they create. However, there are certain exceptions.

Exceptions

Where an author creates a literary or artistic work in the course of their employment by the owner of a newspaper, magazine or similar periodical under a contract of service or apprenticeship and said work is made for the purpose of publication in that newspaper, magazine or periodical, the owner of the publication will own the copyright in the work insofar as the copyright concerns the work's publication or its reproduction for the purpose of being published. In all other respects, the author will own any copyright in the work.

A person who commissions the taking of a photograph, the painting or drawing of a portrait or the making of a gravure, cinematograph film or sound recording will own the copyright therein if they:

  • pay or agree to pay for it in money or the monetary equivalent; and
  • the work is made in accordance with the commission.

Where a work is made in the course of an author's employment by another person under a contract of service or apprenticeship, that other person (ie, the employer) will own any copyright in the work.

If authors and creators contact organisations to discuss their work, they should request such organisations to sign a non-disclosure agreement.

For further information on this topic please contact Natasha Mohunlal at KISCH IP by telephone (+27 11 324 3000) or email (natasha-m@kisch-ip.com). The KISCH IP website can be accessed at www.kisch-ip.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.