Frequently asked questions: Copyright

NB: The answers set out here are simplifications which are supplied for guidance only.

What is copyright?

Copyright provides protection for creative works such as literary, dramatic, musical, and artistic works, amongst others. It is "the exclusive right in relation to work embodying intellectual content (i.e. the product of the intellect) to do or to authorise others to do certain acts in relation to that work, which acts represent in the case of each type of work the manners in which that work can be exploited for personal gain or for profit." (Owen Dean, 2012. Handbook of South African Copyright Law, Juta & Co Ltd.)

Very simply put, copyright includes the right of an author or publisher to exploit his or her creation as well as the negative right to prevent others from doing so.

The owner of the copyright has the exclusive rights to allow or disallow the following:

  • The reproduction of the original work.
  • The distribution of the work.
  • The performance of the work.
  • The public display of the work.

Copyright also provides the author with certain so-called “moral rights”, for example the right to claim authorship of the work and to object to any distortion, mutilation or modification of the work that may prejudice his or her honour or reputation.

What kinds of works are eligible for copyright protection?

Literary (written) works, musical and artistic works; cinematograph films; sound recordings; broadcasts; programme-carrying signals; published editions and computer programs are automatically protected by copyright.

How long does copyright last?

The duration of copyright is the life of the author plus 50 years from the end of the year in which the author dies. In the case of a published edition, the copyright belongs to the publisher and the duration of copyright is 50 years from the date of publication.

How do I get copyright in my book?

In South Africa it is not necessary to register copyright. It arises automatically as soon as the author expresses his or her ideas or creations in tangible form. (For cinematograph films there is a procedure available for registering the copyright. It is advisable but not compulsory to follow this procedure.)

What are moral rights?

Moral rights includes the right of an author of a work to be identified as the author, even when copyright is assigned to a publisher (the right of paternity) as well as the right to object to any adaptation of the work that would be prejudicial to his/her reputation or honour (the right of integrity).

Am I allowed to photocopy part of a book for my own personal and private use?

Fair dealing with a literary work for the purposes of the personal or private use of the work by the person making a copy does not infringe copyright. The determination of 'fair use' will depend on the circumstances of the specific situation.

Personal and private use does not include making multiple copies as this falls outside the concept of fair use. The rule of thumb is that if you deprive a copyright holder of income, your action is not fair and you are possibly infringing copyright.

Is it permissible to make more than one copy if there is no commercial gain involved?

The regulations to the South African Copyright Act 98 of 1978, as amended, allow concessions for educational institutions and for non-profit libraries. These concessions include a defined number of multiple copies strictly for classroom use, and expressly exclude compilations.

Is it correct that copyright is not infringed when 10% or less of a published work is photocopied?

The South African Copyright Act 98 of 1978, as amended, is silent about any percentage. It is thus not correct to assume that copying 10% may be fair and permissible. In order to determine whether copyright is infringed, fair use must be established. The test for fair use is qualitative as well as quantitative and is based on the following factors:

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

If a book is out of print, may it be copied?

'Out of print' does not always mean 'out of copyright'. It is important to take note of the duration of copyright and although a book is out of print, the owners of the copyright may still be generating income through, amongst other sources, the sale of film rights, photocopying rights and translation rights.

What steps do I need to take to protect my work if it is not necessary to register copyright?

Ideas as such are not protected by copyright; your work is only protected once it is in tangible form.  Therefore, it is very important to keep accurate records, including dates of creation of your work.  These records can serve as evidence if your work is directly or indirectly copied, and will support your claim in the event of a dispute. 

A useful strategy is to place a copy of your created work with an attorney and to ask them to date and sign the copy and keep it in a file in their office.  This document can then serve as evidence that the work was already in existence at least as early as the date of the attorney's signature (if an earlier creation date cannot be verified).

It is also important to apply a so-called “Copyright Notice” to your work.  This serves to notify the public that you are reserving your rights under copyright. 

  • This is an example of a short form of such a notice:

Copyright © 2018 [Full names here]. All rights reserved.

  • This is an example of a longer form of such a notice: 

Copyright © 2018 [Full names here]; [Address here]; [Website Address here (optional)].

This book is copyright under the Berne Convention.  In terms of the Copyright Act of South Africa no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the author.

The following additional steps should also be taken:

  • Ensure that a written agreement is put in place with the actual author (if you are not the author) to confirm that the he or she has assigned (i.e. transferred) the copyright to you.  If this is not done the copyright will often continue to be owned by the author.
  • Ensure that the author signs an affidavit which confirms that their work was original and does not infringe anyone else's copyright.

Moore Intellectual Property can assist you with these kinds of documents.

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