Copyright Law in South Africa - 2004

Summary

You don't have to do more than put the copyright symbol on your work. You created it, copyright automatically subsists in your ideas. When you publish your ideas formally, the publisher asks for your copyright - you decide and sign the contract you negotiate.

The National Library must receive five copies of your book unless less than 100 copies will be printed. Addresses of the National Libraries to where you must mail these books are obtainable when you request an ISBN number from the Head Office of the National Library. An ISBN number can be given to you immediately.

They require this information: title, publisher, postal address, tel, fax, contact person. Reprints don't need new ISBN numbers, new editions do. CD publications require their own ISBN number even if it is of a printed item that has its own ISBN number. Magazines and other transient publications get ISN numbers.

National Library of South Africa Head Office contact details
Private Bag X990, 0001 Pretoria
Old Mutual Center, 167 Andries Street, Pretoria
Tel +(27) 12 321 8931 x181, Fax +(27) 12 321 1128
http://www.nlsa.ac.za/

ISBN section's contact details:
Tel 012 401 9718
Fax 012 324 2441, 325 5984
Margaret Kibido

What is copyright?

Copyright exists on a work of authorship, in contrast to patent right which exists on a work of invention; both are rights of intellectual property. Copyright allows the author or owner of the work to obtain, for a limited time, the exclusive right to reproduce, distribute, perform, display, or license the work. The owner also receives the exclusive right to produce or license the production of derivatives of his work. The law specifically also prohibits the reproduction of reproductions of the owner's work. The Copyright Act 98 of 1978 currently regulates all copyright matters in South Africa and no copyright other than that which is specifically protected by the law, is enforceable.  

The law protects the following categories work of authorship: literary works; musical works; artistic works; cinematograph films; sound recordings; broadcasts; program-carrying signals; published editions and computer programs. Work that is part of the 'public domain' can be freely used by anyone for any purpose and is not protected by one of these categories of copyright. Public domain is typically the name of a town or nouns. 

How to obtain copyright protection?
The Copyright Act does not prescribe any formalities for copyright protection and the right becomes enforceable on the date of publication. It is, however, advisable to put the author's name and the date of publication, together with the claim

Copyright © (Year) Author's name
All rights reserved
 
At the University all applicable work of its staff and students that was published in the course of their work or studies, must carry the following copyright identification:

Copyright © (Year) University of Stellenbosch
All rights reserved

where (Year) represents the year in which the work was first published.
According to the Bern Convention of 1886 all work that was first published in South Africa will also be protected internationally.

Categories protected by copyright law
The following inclusive list of categories are protected by the Copyright Act. 

Literary works

It includes, irrespective of the artistic quality thereof: novels, stories, poetical works, dramatic works, stage directions, cinematograph film scenarios, broadcasting scripts, textbooks, treatises, histories, biographies, essays, articles, encyclopedias, dictionaries, letters, reports, memoranda, lectures, speeches, sermons, tables, compilations, including tables and compilations of data stored or embodied in a computer or a medium used in conjunction with a computer, but shall not include a computer program.  Literary works shall not be eligible for copyright unless the work has been written down, recorded, represented in digital data or signals or otherwise reduced to a material form. 

Musical works

It means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music. 

Artistic works 

It means, irrespective of the artistic quality thereof paintings, sculptures, drawings, engravings, photographs, works of architecture, being either buildings or models of buildings or works of craftsmanship. 

Broadcasts

It means a telecommunication service of transmissions consisting of sounds, images, signs or signals which takes place by means of electromagnetic waves and is intended for reception by the public or sections of the public (Esq. distance education). 

Cinematograph films

It means any fixation or storage by any means whatsoever on film or any other material of data, signals or a sequence of images capable, when used in conjunction with any other mechanical, electronic or other device, of being seen as a moving picture and of reproduction, and includes the sounds embodied in a sound-track associated with the film, but shall not include a computer program

Computer programs

It means a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result. Certain categories of computer software programs can also be patented. 

Program-carrying signal

It means a signal embodying a program which is emitted and passes through a satellite. 

Sound recordings

It means any fixation or storage of sounds, or data or signals representing sounds, capable of being reproduced, but does not include a sound-track associated with a cinematograph film. 

Published editions

It means the first print by whatever process of a particular typographical arrangement of a literary or musical work. The effect of this protection is that there can be more than one claim for copyright protection for one work. The one claim will be that of the author while the publisher company will also have a

Requirements

The Copyright Act requires the following before any claim on copyright can be made: 

Inherent requirements

Originality: It is required of the author to create the work through the application of the his skills and creativity, labor and efforts. 

Material form: It is required that the work, with the exception of broadcasts and program-carrying signals, must have been written down, recorded, represented as digital data or signals, or otherwise reduced to material form. Whilst a work is still a mere idea in the mind of the author, no copyright comes into existence. 

Formal requirements

The author must be a qualified person, who is a South African citizen or a citizen of a Bern Convention country, or who is domiciled or resident in South Africa, or, in the case of a juristic person, incorporated under RSA laws, OR if the work was first made in South Africa (this case refers to architecture erected in South Africa), it can be copyrighted. 

Who owns copyright?

The owner of a copyrighted work is generally the person who makes or creates the work, although this is not always the case. Section 21(1) of the Copyright Act regulates this matter which makes it possible for employers, proprietors of newspapers or magazines, or 'work for hire' instructors to be the owner of the work of authorship. The law is very specific in this regard in order to eliminate vagueness with the interpretation of ownership rules. For example: The "author" of a photograph is the person who is responsible for the composition of the photograph and not necessarily the photographer himself.  

The University of Stellenbosch is the sole owner of all work of authorship published by its staff or students and which was created in the course of their studies or scope of employment. The University's policy in this regard is spelled out in detail here (this Afrikaans version will be translated in due course - feel free to contact the OIP if you have any questions in this regard). 

How long does it last?

The term of copyright in respect of literary, musical or artistic works, excluding photographs, is fifty years from the end of the year in which the author dies. In the case of anonymous or pseudo-anonymous works the term of copyright is fifty years from the end of the year in which the author dies or can reasonably be assumed that he died, OR fifty years from the end of the year in which the work was made public with the consent of the author. In the case of joint ownership the term of copyright is fifty years from the end of the year in which the last author dies. In respect of cinematograph films, photographs and computer programs, the term is fifty years from the end of the year in which the work was first made public with the consent of the owner of the copyright, or the end of the year in which the work is first published, whichever term is longer, OR failing this, fifty years from the end of the year in which the work was made. In respect of all other categories the term of copyright is fifty years from the end of the year in which the work first was made.

When can I use the copyrighted material of other people?

Why must I obtain permission and pay fees for photocopying?

Copyright exists to foster the creation of all forms of intellectual property, including books.  The copyright law gives creators of intellectual property a reasonable opportunity to be rewarded for their creative work.  To the extent that copyrighted works are unlawfully copied, authors and publishers are deprived of their lawful income.  This could reduce the incentive to write and publish books and, in the long run, harm education because investments of time and money in new books will not be made if others copy such books without compensation to the copyright owners.

What are the penalties for copyright infringement?

The author or holder of his/her licensee (in some cases) can take legal action where there is an infringement of his/her rights.  The remedies provided include delivery of the infringing material, damages and an interdict preventing further infringement of his/her rights.  The courts have the power to award additional damages where there has been a flagrant infringement of copyright.

The Copyright Act also makes provision for criminal penalties – a fine (a maximum of R5 000) and/or imprisonment of up to three years per infringement for a first conviction.  The maximum fine and/or imprisonment penalty for second conviction is R10 000 and/or five years, per infringement.

How do I obtain copyright permission to use somebody else's work?

Any member of staff who wishes to provide students with course notes or readers which include not only original material but also copyrighted material should obtain permission for such reproduction. The Publishing Liaison Office at CHEC (Cape Higher Education Consortium) operates a copyright clearance center on behalf of the three universities and the two technikons in the Western Cape, providing services relating to copyright clearance and related matters.  Please contact Ms Janetta van der Merwe at tel. no (021) 686-5070 who will assist you in obtaining such permission

What can I do if a text has been ordered but is late in arriving at the bookstore?

You may be able to obtain permission from the copyright owner or publisher to photocopy only a portion of the text whilst you are waiting for the book to arrive.  The Publishing Liaison Office at CHEC can assist with this.

Is there a legitimate exemption for teaching purposes?

The law permits the making of limited numbers of copies without copyright permission for the following purposes:

Research or personal or private use

For the purposes of research or private study, or for personal or private use Section 12 (1) of the Act allows the making of a single copy of a reasonable portion of a work, consistent with fair use. It is generally accepted that the copying of the whole or a major portion of the work in question is not reasonable and not compatible with fair dealing.  The user may also not make the copy available to others. Copyright shall also not be infringed for the purposes of critical review or reporting of current events in a newspaper, film or broadcast.

Reproduction for Education

Section 12(4) of the Act allows a work to be used without permission for teaching purposes:
“The copyright in a literary or musical work shall not be infringed by using such work, to the extent justified by the purpose by way of illustration in any publication, broadcast or sound or visual record for teaching: provided that such use shall be compatible with fair practice and that the source shall be mentioned as well as the name of the author if it appears on the work.”

The use must indeed be “by way of illustration” only, and not as the sole or primary source of instruction on any particular point. Multiple copies for class-room use According to Regulation 2 the reproduction of a work in terms of section 13 of the Act shall be permitted if  “the cumulative effect of the reproduction does not conflict with the normal exploitation of the work to the unreasonable prejudice of the legal interest and residuary rights of the author” “Cumulative effect” is defined as: “not more than one short poem, article, story or essay or two excerpts copied from the same author or more than three short poems, articles, stories or essays from the same collective work or periodical volume” and “no more than 9 instances of such multiple copying for one course of instruction to a particular class during any one term” may be made without copyright permission.

This can be interpreted as no more than 27 short poems, articles, stories or essays (but no more than 3 from the same periodical volume) taken from 9 different works, per term, per course. However, the following shall be prohibited:

a) Copies may not be used to create or replace or substitute anthologies, compilations or collective works;

b) No copies may be made of or from works intended to be ephemeral, including workbooks, exercises, standardized tests and test booklets and answer sheets and similar ephemeral material (note: this does not include material issued by this Institution for teaching but would exclude the use of another Institution’s material by our staff);

c) Copying may not:
i) be used as a substitute for the purchase of books, publishers’ reprints, or periodicals; and
ii) be repeated in respect of the same material by the same teacher from term to term.

What about copyright in the library?

A library or archive depot has certain specific restricted rights to make copies of certain works for archive or reference purposes only and may: 

• duplicate a published work in its entirety for the purpose of replacement of a work that is lost, stolen, damaged or deteriorating if the library or archives, after reasonable effort, determined that an unused replacement cannot be obtained at a fair price. 
• make copies for patrons. 
• make copies for other libraries’ patrons for the purposes of interlibrary loan.
  

There is a lack of clarity regarding copying in the library short loan and reserve sections since nothing in the existing Copyright Act or Regulations directly address this issue.

African Sun Media

African Sun Media (ASM) is the official publishing house of Stellenbosch University en is managed by the division for Intellectual Property. ASM works in close collaboration with the SU Printers, but both are independent entities within the university. Should ASM not be utilized, copy right clearance should still be done by the appropriate lecturer through the Publishing Liaison Office at CHEC's website.

Internet and email

Copyright laws apply on the Internet just as they do in any other environment. The general concept of copyright applies even though the material has been posted on the Internet by others, or sent via e-mail. There is no real difference between copyright and electronic copyright since original works are also protected in electronic format.  In South Africa, as a signatory to the Berne Convention for the Protection of Literary and Artistic Works (an international treaty),  the principle of “national treatment” applies, implying that South African legislation applies to internet activities e.g. downloading information in this country.  When it comes to e-mail the sender or author of the e-mail message is the copyright owner, unless the sender is an employee writing the message in the course of his or her employment, when the employer is the copyright owner.  With postings to a listserver an individual posting made to any list is usually held by the individual who posted the message and the copyright to the compilation of the postings is usually held by the primary list owner or the sponsor. 

The fact that it is technically only binary data that was or will be transferred is irrelevant, because 'copying' under the law occurs simply by transferring copyrightable content from one digital storage device to another. Thus, copying occurs when someone downloads a graphics file and stores it on a computer's hard disk. It again occurs when the file is loaded into the graphics memory. Even browsing a Web page on the Internet involves "making" at least one copy.

The ease of copying and the great difficulty of detecting infringement on the Internet are factors in support of the argument, supported by some, that copyright law does not make sense in this environment. Regardless of whether it makes sense, however, rest assured that information providers on the internet are and will continue to be subject to copyright laws.  Software and multimedia content (text, graphics, sound, etc.) are also protected by copyright.

However, pure data is not protected by copyright because it is considered to be facts, which cannot be taken from the public domain.  As with all other works that are protected by copyright it is therefore advisable to apply the fair use test when using, copying or redistributing e-mail or Internet material. 

Source: University of Stellenbosch
Source: For information about patents, trademarks, etc

Copyright information from the Cape Technikon

Introduction

A South African magistrate recently described illegal photocopying as three-fold theft: from the author, from the publisher and from the bookseller. On South African campuses a considerable amount of photocopying is reportedly taking place on a daily basis. If this reproduction happens without prior permission of the copyright owner, and it does not fall within the legal parameters of "legitimate exemption", it could well be an infringement which could result in legal action.

From the teaching viewpoint

Although the provision of relevant teaching material is an essential facet of learning at Cape Technikon, we are also committed to a policy of compliance with the Copyright Act and Regulations and in so doing, to respect the rights of authors and publishers.

What is copyright?

Copyright is the right of an author, artist, composer or other creator of intellectual property to control the use of his or her work by others. However, if copyright was a total right, that would imply that permission would have to be sought for every copy made, which is not the case. In South Africa there are, in fact, certain exemptions under the Copyright Act of 1978.

Legitimate exemption for teaching purposes For research or personal use a student, a researcher and a teacher may make a single copy of a reasonable portion of a work, consistent with fair dealing, without permission. The user may not distribute or make the copy available to others.

Reproduction for teaching

The following may be reproduced by a lecturer for instructing a particular class during any one term, provided that it is not repeated from term to term: copies of nine poems, articles, stories or essays by nine different authors or copies of eighteen excerpts from the works of nine different authors (two excerpts per author) or copies of twenty seven poems, articles, stories or essays from nine different collective works or periodical volumes with the proviso that all of the twenty seven works must have been written by different authors.

Course Readers (compilations of extracts from various publications)

Copyright clearance must always be sought before reproduction. Most publishers will give permission for only one chapter or 10% from any book (whichever is the lesser) and only one article from any one journal. Since it may take up to two months to obtain copyright clearance, considerable advance planning is necessary when course readers are contemplated.

The penalties for copyright infringement Individuals who contravene the law could be prosecuted in the criminal courts and fines of up to R5000 and/or imprisonment of up to three years per infringement are possible.

Obtaining copyright permission

The Adamastor Trust (a co-operative venture between the three universities and the two technikons in the Western Cape) has established a Publishing Liaison Office (PLO) which provides a copyright clearance service to the participating institutions. Requests for copyright permission should be made by completing application forms which can be obtained from the Main Library. These forms should be returned to Adamastor Trust with the CALICO van via the Library.

Cost implications

DALRO (Dramatic, Artistic and Literary Rights Organization, which represents most of the British, American and local publishers), currently charges a copyright fee of 14c per single-sided page. This will increase to 16c in 1998. Therefore it is essential that departments planning course readers for 1998 budget for copyright fees, in addition to the existing reproduction charges. Contacting the Publishing Liaison Office The project coordinator, Ms Janetta van der Merwe, will provide assistance with copyright and related matters at: Tel. no. (021) 686-5070 Fax no. (021) 689-7465 e-mail jwv@grove.uct.ac.za

Copyright and the Short Loan Section

In terms of a strict interpretation of the Copyright Act, only original articles, books and copies of lecturers' own notes may be held on shortloan shelves. If a lecturer has had an article published, then only the original publication, not a photocopy of the published article, may be kept in shortloan. In short: if it has been published, the published version as bought by us is legal for use in Short Loan. Any photocopy, except of unpublished material of which the author requested that it be placed on shortloan, may not be illegal.

The Library has requested a legal opinion on the possibility of keeping photocopies of published works (single journal articles and single chapters of books) in the Short Loan section.

Copyright web sites about other countries

For those that are interested in reading how copyright legislation works in other countries, the following links might be of interest:

JISC/PA documents on fair dealing in the digital environment, etc
http://www.ukoln.ac.uk/services/elib/papers.pa

EU Directive on Copyright and Related Rights
http://europa.eu.int/comm/internal_market/en/intprop/news/index.htm

Source: Stellenbosch University

{Tanya Pretorius' Bookmarks: Writing, South African copyright information