Copyright Act, 1978/1980-05-23

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as amended by

Copyright Amendment Act, No. 56 of 1980

1. (1) In this Act, unless the content otherwise indicates―

“adaptation”, in relation to―

a literary work, includes―

in the case of a non-dramatic work, a version of the work in which it is converted into a dramatic work;

in the case of a dramatic work, a version of the work in which it is converted into a non-dramatic work;

a translation of the work; or

a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book or in a newspaper, magazine or similar periodical;

a musical work, includes any arrangement or transcription of the work, if such arrangement or transcription has an original creative character;

an artistic work, includes a transformation of the work in such a manner that the original or substantial features thereof remain recognizable;

“arbitration” means arbitration in accordance with the provisions of the Arbitration Act, 1965 (Act No. 42 of 1965);

“artistic work” means, irrespective of the artistic quality thereof―

paintings, sculptures, drawings, engravings and photographs;

works of architecture, being either buildings or models of buildings; or

works of artistic craftsmanship, not falling within either paragraph (a) or (b);

“author”, in relation to―

a literary, musical or artistic work, means the person who first makes or creates the work;

a photograph, means the person who is responsible for the composition of the photograph;

a sound recording, means the person by whom the arrangements for the first fixing of the sounds of a performance or of other sounds were made;

a cinematograph film, means the person by whom the arrangements for the making of the film were made;

a broadcast, means the Corporation;

a programme-carrying signal, means the Corporation;

“broadcast” means a broadcasting service as defined in section 1 of the Broadcasting Act, 1976 (Act No. 73 of 1976), and includes the emitting of programme-carrying signals to a satellite; and a reference to “broadcast” when used as a noun, shall be construed accordingly;

“broadcaster” means a person who undertakes a broadcasting service as defined in section 1 of the Broadcasting Act, 1976 (Act No. 73 of 1976);

“building” includes any structure;

“cinematograph film” means the first fixation by any means whatsoever on film or any other material of a sequence of images capable, when used in conjuction with any 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;

“copy” means a reproduction in written form or in the form of a recording or a cinematograph film or in any other material form: Provided that an object shall not be taken to be a copy of a work of architecture unless the object is a building or a model of a building;

“copyright” means copyright under this Act;

“Corporation” means the South African Broadcasting Corporation as defined in section 1 of the Broadcasting Act, 1976 (Act No. 73 of 1976);

“country” includes any colony, protectorate or territory subject to the authority or under the suzerainty of any other country, and any territory over which trusteeship is exercised;

“derived signal” is a signal obtained by modifying the technical characteristics of the emitted signal, whether or not there have been one or more intervening fixations;

“diffusion service” means a telecommunication service of transmissions consisting of sounds, images, signs or signals, which takes place over wires or other paths provided by material substance and intended for reception by specific members of the public; and diffusion shall not be deemed to constitute a performance or a broadcast or as causing sounds, images, signs or signals to be seen or heard; and where sounds, images, signs or signals are displayed or emitted by any receiving apparatus to which they are conveyed by diffusion in such manner as to constitute a performance or a causing of sounds, images, signs or signals to be seen or heard in public, this shall be deemed to be effected by the operation of the receiving apparatus;

“distribution”, in relation to―

a sound recording, means any act by which records embodying the sound recording are offered, directly or indirectly, to the general public or any section thereof;

programme-carrying signals, means any operation by which a distributor transmits derived signals to the general public or any section thereof;

“distributor”, in relation to programme-carrying signals, means the person who decides that the transmission of the derived signal to the general public or any section thereof shall take place;

“dramatic work” includes a choreographic work or entertainment in dumb show, if reduced to the material form in which the work or entertainment is to be presented, but does not include a cinematograph film as distinct from a scenario or script for a cinematograph film;

“drawing” includes any diagram, map, chart or plan;

“emitted signal” means a programme-carrying signal which goes to or passes through a satellite;

“engraving” includes any etching, lithograph, woodcut, print or similar work, but does not include a photograph;

“exclusive license” means a licence authorizing a licensee, to the exclusion of all other persons, including the grantor of the licence, to exercise a right which by virtue of this Act would, apart from the licence, be exercisable exclusively by the owner of the copyright; and “exclusive licensee” shall be construed accordingly;

“infringing copy”, in relation to—

a literary, musical or artistic work, means a reproduction thereof;

a sound recording or a substantial part thereof, means a record embodying that recording;

a cinematograph film, means a copy of the film; and

a broadcast, means a cinematograph film of it or a copy of a cinematograph film of it or a sound recording of it or a record embodying a sound recording of it or a still photograph or an individual image or a copy of a still photograph,

being in any such case an article the making of which constituted an infringement of the copyright in the work, recording, cinematograph film or broadcast or, in the case of an imported article, would have constituted an infringement of that copyright if the article had been made in the Republic;

“judicial proceedings” means proceedings before any court, tribunal or person having by law power to hear, receive and examine evidence on oath;

“licence” means a licence granted by or on behalf of the owner or prospective owner of the copyright in a literary, musical or artistic work or in a sound recording or a broadcast, being—

in the case of a literary or musical work, a licence to publish the work in a material form or to perform the work or an adaptation thereof in public or to broadcast it or to record it or to cause it to be transmitted in a diffusion service;

in the case of an artistic work, a licence to include it or an adaptation thereof in a cinematograph film or in a prerecorded or live television broadcast or to cause the work or an adaptation thereof to be transmitted in a diffusion service;

in the case of a sound recording, a licence to make a record embodying it; and

in the case of a broadcast, a licence to rebroadcast it, to record it or to cause it to be transmitted in a diffusion service;

“licence scheme”, in relation to licences of any description, means a scheme prepared by one or more licensing bodies, setting out the classes of cases in which they are willing or the person on whose behalf they act is willing to grant licenses of that description, and the charges, if any, and terms and conditions subject to which licences may be granted in those classes of cases, and includes anything in the nature of such a scheme, whether described as a scheme or as a tariff or by any other name;

“licensing body”, in relation to―

such licences as are mentioned in paragraph (a) or (b) of the definition of “licence”, means a society or other organization which has as one of its objects the negotiation or granting of such licences, either as owner or prospective owner of copyright or as agent for the owners or prospective owners thereof;

such licence as is mentioned in paragraph (c) of the said definition, means any owner or prospective owner of copyright in sound recordings or any person or body of persons acting as agent for any owners or prospective owners of copyright in sound recordings in relation to the negotiation or granting of such licence; and

such licences as are mentioned in paragraph (d) of the said definition, means the Corporation or any organization appointed by it for negotiating or granting such licences;

“literary work” includes, irrespective of literary quality and in whatever mode or form expressed―

novels, stories and poetical works;

dramatic works, stage directions, cinematograph film scenarios and broadcasting scripts;

textbooks, treatises, histories, biographies, essays and articles;

encyclopaedias and dictionaries;

letters, reports and memoranda;

lectures, addresses and sermons; and

written tables and compilations;

“Minister” means the Minister of Economic Affairs;

“performance” includes any mode of visual or acoustic presentation of a work, including any such presentation by the operation of a loudspeaker, a radio, television or diffusion receiver or by the exhibition of a cinematograph film or by the use of a record or by any other means, and in relation to lectures, addresses, speeches and sermons, includes delivery thereof; and references to “perform” in relation to a work or an adaptation of a work shall be construed accordingly: Provided that “performance” shall not include broadcasting or rebroadcasting or transmitting a work in a diffusion service;

“photograph” means any product of photography or of any process analogous to photography, but does not include any part of a cinematograph film;

“plate” includes any stereotype, stone, block, mould, matrix, transfer, negative or other similar appliance;

“prescribed” means prescribed by or under this Act;

“programme”, in relation to programme-carrying signals, means a body of live or recorded material consisting of images or sounds or both, embodied in signals emitted for the purpose of ultimate distribution;

“prospective owner”, in relation to copyright, means a person who shall be entitled to the copyright, wholly or partially, in a work in which copyright does not yet subsist or whose entitlement to the copyright which does exist shall become effective upon a future event;

“qualified person” means a qualified person within the meaning of section 3 (1);

“rebroadcasting” means the simultaneous or subsequent broadcasting by one broadcasting organization of the broadcast of another broadcasting organization;

“record” means any disc, tape, perforated roll or other device in or on which sounds are embodied so as to be capable of being automatically reproduced therefrom or performed;

“Registrar” means the Registrar of Copyright, who shall be the person appointed as Registrar of Patents under section 7 of the Patents Act, 1978;

“regulation” means a regulation made under this Act;

“reproduction”, in relation to―

a literary or musical work or a broadcast, includes a reproduction in the form of a record or a cinematograph film;

an artistic work, includes a version produced by converting the work into a three-dimensional form or, if it is in three dimensions, by converting it into a two-dimensional form;

and references to “reproduce” and “reproducing” shall be construed accordingly;

“satellite” means any device in extra-terrestrial space capable of transmitting signals;

“signal” means an electronically generated carrier capable of transmitting programmes;

“sculpture” includes any cast or model made for purposes of sculpture;

“sound recording” means the direct exclusively aural fixation of sounds of a performance or of other sounds capable of being reproduced, but does not include a sound-track associated with a cinematograph film;

“this Act” includes the regulations;

“work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not separable from the contribution of the other author or authors;

“writing” includes any form of notation, whether by hand or by printing, typewriting or any similar process.

(2) Any reference in this Act to a sound-track associated with a cinematograph film shall be construed as a reference to any record of sounds which is incorporated in any print, negative, tape or other article on which the film or part of it, in so far as it consists of visual images, is recorded or which is issued by the author of the film for use in conjunction with such an article.

(2A) Any reference in this Act to the doing of any act in relation to any work shall, unless the context otherwise indicates, be construed as a reference also to the doing of any such act in relation to any substantial part of such work.

(3) The provisions of this Act shall with reference to any act or omission outside the territorial limits of the Republic by or on any ship or aircraft registered under any law in the Republic apply in the same manner as it applies with reference to acts or omissions within the territorial limits of the Republic.

CHAPTER 1

2. (1) Subject to the provisions of this Act, the following works, if they are original, shall be eligible for copyright―

literary works; musical works; artistic works; cinematograph films, to which are assimilated works expressed by a process analogous to cinematography; sound recordings; broadcasts; programme-carrying signals.

(2) A literary, musical or artistic work shall not be eligible for copyright unless the work has been written down, recorded or otherwise reduced to material form.

(3) A work shall not be ineligible for copyright by reason only that the making of the work, or the doing of any act in relation to the work, involved an infringement of copyright in some other work.

6. Copyright in a literary or musical work vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

Reproducing the work in any manner or form;

publishing the work;

performing the work in public;

broadcasting the work;

causing the work to be transmitted in a diffusion service, unless such service transmits a lawful broadcast, including the work, and is operated by the original broadcaster;

making an adaptation of the work;

doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (e) inclusive.

7. Copyright in an artistic work vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

Reproducing the work in any manner or form;

publishing the work;

including the work in a cinematograph film or a television broadcast;

causing a television or other programme, which includes the work, to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the work, and is operated by the original broadcaster;

making an adaptation of the work;

doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (d) inclusive.

8. (1) Copyright in a cinematograph film vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

Reproducing the film in any manner or form;

causing the film, in so far as it consists of images, to be seen in public, or, in so far as it consists of sounds, to be heard in public;

broadcasting the film;

causing the film to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the film, and is operated by the original broadcaster;

making an adaptation of the film;

doing, in relation to an adaptation of the film, any of the acts specified in relation to the film in paragraphs (a) to (d) inclusive.

(2) The authorization to use a work, other than a musical work, for the making of a cinematograph film, or the contribution of a work to such making, shall, in the absence of agreement to the contrary, include the right to broadcast such film.

9. Copyright in a sound recording vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

Making, directly or indirectly, a record embodying the sound recording;

importing records embodying the sound recording and distributing them, directly or indirectly, to the general public or any section thereof.

10. Copyright in a broadcast vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

Reproducing, directly or indirectly, the broadcast in any manner or form, including, in the case of a television broadcast, making a still photograph of an individual image;

rebroadcasting the broadcast;

causing the broadcast to be transmitted in a diffusion service, unless such service is operated by the original broadcaster.

13. In addition to reproductions permitted in terms of this Act reproduction of a work shall also be permitted as prescribed by regulation, but in such a manner that the reproduction is not in conflict with a normal exploitation of the work and is not unreasonably prejudicial to the legitimate interests of the owner of the copyright.

21. (1) (a) Subject to the provisions of this section, the ownership of any copyright conferred by section 3 or 4 on any work shall vest in the author or, in the case of a work of joint authorship, in the co-authors of the work.

Where a literary or artistic work is made by an author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and is so made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall be the owner of the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical or to reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the owner of any copyright subsisting in the work by virtue of section 3 or 4. Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a sound recording and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, such person shall, subject to the provisions of paragraph (b), be the owner of any copyright subsisting therein by virtue of section 3 or 4.

Where in a case not falling within either paragraph (b) or (c) a work is made in the course of the author’s employment by another person under a contract of service or apprenticeship, that other person shall be the owner of any copyright subsisting in the work by virtue of section 3 or 4.

Paragraphs (b), (c) and (d) shall in any particular case have effect subject to any agreement excluding the operation thereof and subject to the provisions of section 20.

(2) Ownership of any copyright conferred by section 5 shall initially vest in the state or the international organization concerned, and not in the author.