Copyright Act, 1978/1983-10-17

​

as amended by

Copyright Amendment Act, No. 56 of 1980

Copyright Amendment Act, No. 66 of 1983

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 craftmanship, or works of craftmanship of a technical nature, 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 drawing of a technical nature or 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 Industries, Commerce and Tourism;

“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;

any work, includes a reproduction made from a reproduction of that work;

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. [Sub-s. (2A) inserted by s. 1 of Act No. 56 of 1980.]

(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.

15. (1) The copyright in an artistic work shall not be infringed by its inclusion in a cinematograph film or a television broadcast or transmission in a diffusion service, if such inclusion is merely by way of background, or incidental, to the principal matters represented in the film, broadcast or transmission.

(2) The copyright in a work of architecture or in the relevant drawings shall not be infringed by the reconstruction of that work on the same site in the same style as the original.

(3) The copyright in a artistic work shall not be infringed by its reproduction or inclusion in a cinematograph film or a television broadcast or transmission in a diffusion service, if such work is permanently situated in a street, square or a similar public place.

 (3A) (a) The copyright in an artistic work of which three-dimensional reproductions were made available, whether inside or outside the Republic, to the public by or with the consent of the copyright owner (hereinafter referred to as authorized reproductions), shall not be infringed if any person without the consent of the owner makes or makes available to the public three-dimensional reproductions or adaptations of the authorized reproductions, provided―

a period of at least ten years has elapsed since the end of the calendar year in which authorized reproductions of such work were first made available to the public; and

the authorized reproductions primarily have a utilitarian purpose and are made by an industrial process.

For the purposes of paragraph (a) (i) authorized reproductions of any artistic work in question made available to the public before the commencement of section 2 of the Copyright Amendment Act, 1983, shall be deemed to have been first so made available on the date of such commencement.

(4) The provisions of section 12 (1), (2), (4), (5) and (12) shall mutatis mutandis apply with reference to artistic works.

26. (1) Where in the case of a literary, musical or artistic work a name purporting to be that of the author appeared on copies of the work as published or, in the case of an artistic work, appeared on the work when it was made, the person whose name so appeared shall, if it was his true name or a name by which he was commonly known, in any action brought by virtue of this Chapter be presumed, unless the contrary is proved, to be the author of the work.

(2) In the case of a work alleged to be a work of joint authorship, subsection (1) shall apply in relation to each person alleged to be one of the authors of the work as if references in that subsection to the author were references to one of the authors.

(3) Where in an action brought by virtue of this Chapter with respect to a literary, musical or artistic work which is anonymous or pseudonymous it is established―

that the work was first published in the Republic and was so published within the period of fifty years ending with the beginning of the calendar year in which the action was brought; and

that a name purporting to be that of the publisher appeared on copies of the work as first published,

then, unless the contrary is shown, copyright shall be presumed to subsist in the work and the person whose name so appeared shall be presumed to have been the owner of that copyright at the time of the publication: Provided that this subsection shall not apply if the actual name of the author of a pseudonymous work is commonly known.

(4) Where in an action brought by virtue of this Chapter with respect to a literary, musical or artistic work it is proved or admitted that the author of the work is dead, the work shall be presumed to be an original work unless the contrary is proved.

(5) Subsection (4) shall also apply where a work has been published and―

the publication was anonymous or under a name alleged by the plaintiff to have been a pseudonym; and

it is not shown that the work has ever been published under the true name of the author or under a name by which he was commonly known or that it is possible for a person without previous knowledge of the facts to ascertain the identity of the author by reasonable inquiry.

(6) Where in an action brought by virtue of this Chapter with respect to copyright in a cinematograph film it is proved that the name purporting to be the name of the author of that film appears thereon in the prescribed manner, the person whose name so appears shall be presumed to be the author of that film, unless the contrary is proved.

(7) Where in an action brought by virtue of this Chapter with respect to copyright in a sound recording it is proved that records embodying that recording or part thereof have been issued to the public and that at the time when those records were so issued they bore a label or other mark comprising any one or more of the following statements, that is to say―

that a person named on the label or mark was the author of the sound recording; that the recording was first published in a year specified on the label or mark; or that the recording was first published in a country specified on the label or mark;

that label or mark shall be sufficient evidence of the facts so stated except in so far as the contrary is proved.

(8) Where in an action brought by virtue of this Chapter with respect to the alleged infringement by a person of the copyright in any artistic work of which three-dimensional reproductions were made available, whether inside or outside the Republic, to the public by or with the consent of the copyright owner, it is proved that such reproductions at the time when they were so made available bore a label or other mark specifiying the following claims, namely―

that copyright exists in the artistic work of which the reproductions were made;

that a person specified on the label or mark was the owner or exclusive licensee of the copyright; and

that the reproductions were first made available to the public in a year specified on the label or mark,

(which claims may be indicated by means of the symbol “©” in conjunction with the name of the relevant person and the relevant year) it shall be presumed, until the contrary is proved―

that the reproductions were first made available to the public in the year so specified; and

that the first-mentioned person had at all relevant times been aware of the claims referred to in paragraphs (a), (b) and (c).