Copyright Act, 1978/2002-06-25

​

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

Copyright Amendment Act, No. 9 of 2002

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;

“collecting society” means a collecting society established under this Act;

“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 Trade and Industry;

“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.

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;

letting, or offering or exposing for hire by way of trade, directly or indirectly, a reproduction of the sound recording.

broadcasting the sound recording;

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

communicating the sound recording to the public.

 9A. (1) (a) In the absence of an agreement to the contrary, no person may broadcast, cause the transmission of or play a sound recording as contemplated in section 9(c), (d) or (e) without payment of a royalty to the owner of the relevant copyright.

(b) The amount of any royalty contemplated in paragraph (a) shall be determined by an agreement between the user of the sound recording, the performer and the owner of the copyright, or between their representative collecting societies.

(c) In the absence of an agreement contemplated in paragraph (b), the user, performer or owner may refer the matter to the Copyright Tribunal referred to in section 29(1) or they may agree to refer the matter for arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965).

(2) (a) The owner of the copyright who receives payment of a royalty in terms of this section shall share such royalty with any performer whose performance is featured on the sound recording in question and who would have been entitled to receive a royalty in that regard as contemplated in section 5 of the Performers’ Protection Act, 1967 (Act No. 11 of 1967).

(b) The performer’s share of the royalty shall be determined by an agreement between the performer and the owner of copyright, or between their respective collecting societies.

(c) In the absence of an agreement contemplated in paragraph (b), the performer or owner may refer the matter to the Copyright Tribunal referred to in section 29(1), or they may agree to refer the matter for arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965).

(d) Any payment made by the user of the sound recording in terms of this subsection shall be deemed to have discharged any obligation which that user might have to make any payment in respect of his or her use of a corresponding fixation in terms of section 5 of the Performers’ Protection Act, 1967 (Act No. 11 of 1967).

(3) In the event of any right to a royalty being assigned to any successor in title, either by contractual arrangement, operation of law, testamentary disposition or otherwise, any successor in title shall be entitled to enforce such right to a royalty against the person who in terms of this section is obliged to pay or against his or her successor in title.



CHAPTER 5

39. The Minister may make regulations―

as to any matter required or permitted by this Act to be prescribed by regulation;

in consultation with the Minister of Finance, prescribing the tariff of fees payable in respect of proceedings before the Copyright Tribunal referred to in section 29 (1);

in consultation with the Minister of Finance, prescribing the remuneration and allowances of members of the advisory committee referred to in section 40, and of its subcommittees, and the conditions upon which such members shall be appointed; and

in consultation with the Minister of Finance, providing for the establishment, composition, funding and functions of collecting societies contemplated in section 9A, and any other matter that it may be necessary or expedient to regulate for the proper functioning of such societies;

generally, as to any matter which he considers it necessary or expedient to prescribe in order that the purposes of this Act may be achieved.