Copyright Act, 1978/1997-10-01

​

as amended by

Copyright Amendment Act, No. 56 of 1980

Copyright Amendment Act, No. 66 of 1983

Copyright Amendment Act, No. 52 of 1984

Copyright Amendment Act, No. 39 of 1986

Copyright Amendment Act, No. 13 of 1988

Copyright Amendment Act, No. 61 of 1989

Copyright Amendment Act, No. 125 of 1992

Intellectual Property Laws Amendment Act, No. 38 of 1997

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;

a computer program includes―

a version of the program in a programming language, code or notation different from that of the program; or

a fixation of the program in or on a medium different from the medium of fixation of the program;

“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 craftmanship 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 making of the sound recording were made;

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

a programme-carrying signal, means the first person emitting the signal to a satellite;

a published edition, means the publisher of the edition;

a literary, dramatic, musical or artistic work or computer program which is computer-generated, means the person by whom the arrangements necessary for the creation of the work were undertaken;

a computer program, the person who exercised control over the making of the computer program;

“broadcast”, when used as a noun, means a telecommunication service of transmissions consisting of sounds, images, signs or signals which―

takes place by means of electromagnetic waves of frequencies of lower than 3 000 GHz transmitted in space without an artifical conductor; and

is intended for reception by the public or sections of the public,

and includes the emitting of programme-carrying signals to a satellite, and, when used as a verb, shall be construed accordingly;

“broadcaster” means a person who undertakes a broadcast;

“building” includes any structure;

“cinematograph film” 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 conjuction 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 program” 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;

“copy” means a reproduction of a work, and, in the case of a literary, musical or artistic work, a cinematograph film or a computer program, also an adaptation thereof: 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;

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

“distributor”, in relation to a programme-carrying signal, 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 signal which goes to 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 or a published edition, means a copy thereof;

a sound recording, means a record embodying that recording;

a cinematograph film, means a copy of the film or a still photograph made therefrom;

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 made therefrom; and

a computer program, means a copy of such computer program,

being in any such case an article the making of which constituted an infringement of the copyright in the work, recording, cinematograph film, broadcast or computer program 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 scheme”, for the purposes of Chapter 3, 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;

“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, speeches and sermons; and

tables and 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;

“Minister” means the Minister of Economic Affairs and Technology;

“musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music;

“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, speeches and sermons, includes delivery thereof; and references to “perform” in relation to 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, record, disc, storage medium or any version of a work of whatsoever nature used to make copies;

“prescribed” means prescribed by or under this Act;

“programme”, in relation to a programme-carrying signal, means a body of live or recorded material consisting of images or sounds or both, embodied in a signal;

“programme-carrying signal” means a signal embodying a program which is emitted and passes through a satellite;

“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;

“published edition” means the first print by whatever process of a particular typographical arrangement of a literary or musical work;

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

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

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

“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 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;

“this Act” includes the regulations;

“work” a work contemplated in section 2;

“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.

(4) Notwithstanding the provisions of paragraph (i) of the definition of “author” in subsection (1), the author of a computer program made before the date of commencement of the Copyright Amendment Act, 1992, shall be deemed to be the person who first made or created the program, but if such computer program is original and has been published by a qualified person, such person shall be presumed to be the owner of the copyright subsisting in the computer program concerned, unless the contrary is proved.

(5) For the purposes of this Act the following provisions shall apply in connection with the publication of a work:

Subject to paragraph (e), a work shall be deemed to have been published if copies of such work have been issued to the public with the consent of the owner of the copyright in the work in sufficient quantities to reasonably meet the needs of the public, having regard to the nature of the work.

Publication of a cinematograph film or sound recording is the sale, letting, hire or offer for sale or hire, of copies thereof.

A publication shall not be treated as being other than the first publication by reason only of an earlier publication elsewhere within a period of 30 days.

Publication shall not include―

a performance of a musical or dramatic work, cinematograph film or sound recording;

a public delivery of a literary work;

a transmission in a diffusion service;

a broadcasting of a work;

an exhibition of a work of art;

a construction of a work of architecture.

For the purposes of sections 6, 7 and 11(b), a work shall be deemed to be published if copies thereof have been issued to the public.

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;

sound recordings;

broadcasts;

programme-carrying signals;

published editions;

computer programs.

(2) A work, except a broadcast or programme-carrying signal, 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.

(2A) A broadcast or a programme-carrying signal shall not be eligible for copyright until, in the case of a broadcast, it has been broadcast and, in the case of a programme-carrying signal, it has been transmitted by a satellite.

(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.

3. (1) Copyright shall be conferred by this section on every work, eligible for copyright, of which the author or, in the case of a work of joint authorship, any one of the authors is at the time the work or a substantial part thereof is made, a qualified person, that is―

in the case of an individual, a person who is a South African citizen or is domiciled or resident in the Republic; or

in the case of a juristic person, a body incorporated under the laws of the Republic:

Provided that a work of architecture erected in the Republic or any other artistic work incorporated in a building or any other permanent structure in the Republic, shall be eligible for copyright, whether or not the author was a qualified person.

(2) The term of copyright conferred by this section shall be, in the case of―

literary or musical works or artistic works, other than photographs, the life of the author and fifty years from the end of the year in which the author dies: Provided that if before the death of the author none of the following acts had been done in respect of such works or an adaptation thereof, namely―

the publication thereof;

the performance thereof in public;

the offer for sale to the public of records thereof;

the broadcasting thereof;

the term of copyright shall continue to subsist for a period of fifty years from the end of the year in which the first of the said acts is done;

cinematograph films, photographs and computer programs, fifty years from the end of the year in which the work

is made available to the public with the consent of the owner of the copyright; or

is first published,

whichever term is the longer, or failing such an event within fifty years of the making of the work, fifty years from the end of the year in which the work is made;

sound recordings, fifty years from the end of the year in which the recording is first published;

broadcasts, fifty years from the end of the year in which the broadcast first takes place;

programme-carrying signals, fifty years from the end of the year in which the signals are emitted to a satellite.

published editions, fifty years from the end of the year in which the edition is first published.

 (3) (a) In the case of anonymous or pseudonymous works, the copyright therein shall subsist for fifty years from the end of the year in which the work is made available to the public with the consent of the owner of the copyright or from the end of the year in which it is reasonable to presume that the author died, whichever term is the shorter.

In the event of the identity of the author becoming known before the expiration of the period referred to in paragraph (a), the term of protection of the copyright shall be calculated in accordance with the provisions of subsection (2).

(4) In the case of a work of joint authorship the reference in the preceding subsections to the death of the author shall be taken to refer to the author who dies last, whether or not he is a qualified person.

 11B. Copyright in a computer program vests the exclusive right to do or authorize the doing of any of the following acts in the Republic:

Reproducing the computer program in any manner or form;

publishing the computer program if it was hitherto unpublished;

performing the computer program in public;

broadcasting the computer program;

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

making an adaptation of the computer program;

doing, in relation to an adaptation of the computer program, any of the acts specified in relation to the computer program in paragraphs (a) to (e) inclusive;

letting, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the computer program.

 12. (1) Copyright shall not be infringed by any fair dealing with a literary or musical work―

for the purposes of research or private study by, or the personal or private use of, the person using the work;

for the purposes of criticism or review of that work or of another work; or

for the purpose of reporting current events―

in a newspaper, magazine or similar periodical; or

by means of broadcasting or in a cinematograph film:

Provided that, in the case of paragraphs (b) and (c)(i), the source shall be mentioned, as well as the name of the author if it appears on the work.

(2) The copyright in a literary or musical work shall not be infringed by using the work for the purposes of judicial proceedings or by reproducing it for the purposes of a report of judicial proceedings.

(3) The copyright in a literary or musical work which is lawfully available to the public shall not be infringed by any quotation therefrom, including any quotation from articles in newspapers or periodicals that are in the form of summaries of any such work: Provided that the quotation shall be compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose and that the source shall be mentioned, as well as the name of the author if it appears on the work.

(4) 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.

 (5) (a) The copyright in a literary or musical work shall not be infringed by the reproduction of such work by a broadcaster by means of its own facilities where such reproduction or any copy thereof is intended exclusively for lawful broadcasts of the broadcaster and is destroyed before the expiration of a period of six months immediately following the making of the reproduction, or such longer period as may be agreed to by the owner of the relevant part of the copyright in the work.

Any reproduction of a work made under paragraph (a) may, if it is of an exceptional documentary nature, be preserved in the archives of the broadcaster, but shall, subject to the provisions of this Act, not be used for broadcasting or for any other purpose without the consent of the owner of the relevant part of the copyright in the work.

 (6) (a) The copyright in a lecture, address or other work of a similar nature which is delivered in public shall not be infringed by reproducing it in the press or by broadcasting it, if such reproduction or broadcast is for an informatory purpose.

The author of a lecture, address or other work referred to in paragraph (a) shall have the exclusive right of making a collection thereof.

(7) The copyright in an article published in a newspaper or periodical, or in a broadcast, on any current economic, political or religious topic shall not be infringed by reproducing it in the press or broadcasting it, if such reproduction or broadcast has not been expressly reserved and the source is clearly mentioned.

 (8) (a) No copyright shall subsist in official texts of a legislative, administrative or legal nature, or in official translations of such texts, or in speeches of a political nature or in speeches delivered in the course of legal proceedings, or in news of the day that are mere items of press information.

The author of the speeches referred to in paragraph (a) shall have the exclusive right of making a collection thereof.

(9) The provisions of subsections (1) to (7) inclusive shall apply also with reference to the making or use of an adaptation of a work.

(10) The provisions of subsections (6) and (7) shall apply also with reference to a work or an adaptation thereof which is transmitted in a diffusion service.

(11) The provisions of subsections (1) to (4) inclusive and (6), (7) and (10) shall be construed as embracing the right to use the work in question either in its original language or in a different language, and the right of translation of the author shall, in the latter event, be deemed not to have been infringed.

(12) The copyright in a literary or musical work shall not be infringed by the use thereof in a bona fide demonstration of radio or television receivers or any type of recording equipment or playback equipment to a client by a dealer in such equipment.

(13) An authorization to use a literary work as a basis for the making of a cinematograph film or as a contribution of a literary work to such making, shall, in the absence of an agreement to the contrary, include the right to broadcast such film.

24. (1) Subject to the provisions of this Act, infringements of copyright shall be actionable at the suit of the owner of the copyright, and in any action for such an infringement all such relief by way of damages, interdict, delivery of infringing copies or plates used or intended to be used for infringing copies or otherwise shall be available to the plaintiff as is available in any corresponding proceedings in respect of infringements of other proprietary rights.

(1A) In lieu of damages the plaintiff may, at his or her option, be awarded an amount calculated on the basis of a reasonable royalty which would have been payable by a licensee in respect of the work or type of work concerned.

(1B) For the purposes of determining the amount of damages or a reasonable royalty to be awarded under this section or section 25(2), the court may direct an enquiry to be held and may prescribe such procedures for conducting such enquiry as the court considers necessary.

(1C) Before the owner of copyright institutes proceedings under this section, he or she shall give notice in writing to the exclusive licensee or sub-licensee of the copyright concerned of the intention to do so, and the exclusive licensee or sub-licensee may intervene in such proceedings and recover any damages he or she may have suffered as a result of the infringement concerned or a reasonable royalty to which he or she may be entitled.

(2) Where in an action for infringement of copyright it is proved or admitted that an infringement was committed but that at the time of the infringement the defendant was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work to which the action relates, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement.

(3) Where in an action under this section an infringement of copyright is proved or admitted, and the court having regard, in addition to all other material considerations, to―

the flagrancy of the infringement; and

any benefit shown to have accrued to the defendant by reason of the infringement,

is satisfied that effective relief would not otherwise be available to the plaintiff, the court shall in assessing damages for the infringement have power to award such additional damages as the court may deem fit.

(4) In an action for infringement of copyright in respect of the construction of a building, no interdict or other order shall be made―

after the construction of the building has been begun so as to prevent it from being completed; or

so as to require the building, in so far as it has been constructed, to be demolished.

25. (1) An exclusive licensee and an exclusive sub-licensee shall have the same rights of action and be entitled to the same remedies as if the license were an assignment, and those rights and remedies shall be concurrent with the rights and remedies of the owner of the copyright under which the licence and sub-licence were granted.

(2) Before an exclusive licensee or sub-licensee institutes proceedings under subsection (1), he or she shall give notice in writing to the owner of the copyright concerned of the intention to do so, and the owner may intervene in such proceedings and recover any damages he or she may have suffered as a result of the infringement concerned or a reasonable royalty to which he or she may be entitled.

34. In a dispute concerning the transmission of broadcasts in a diffusion service in the Republic, the tribunal shall disallow any claim under this Act to the extent to which the licences of the broadcaster concerned provide for or include such transmission in a diffusion service.