Copyright Act, 1978/future

​ 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

Companies Act, No. 71 of 2008

Intellectual Property Laws Amendment Act, No. 28 of 2013

E IT ENACTED by the State President, the Senate and the House of Assembly of the Republic of South Africa, as follows:―

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;

a derivative indigenous work, means the person who ﬁrst made or created the work, a substantial part of which was derived from an indigenous work; and

an indigenous work, means the indigenous community from which the work originated and acquired its traditional character;

“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 society created by this Act, or agreement and which amongst others—

manages matters related to rights in copyright works;

negotiates for, and collects royalties and beneﬁts on behalf of its members; and

distributes royalties and beneﬁts to copyright owners;

“Commission” means the Commission established in terms of section 185 of the Companies Act, 2008 (Act No. 71 of 2008);

“community protocol” means a protocol developed by an indigenous community that describes the structure of the indigenous community and its claims to indigenous cultural expressions or knowledge and indigenous works, and provides procedures for prospective users of such indigenous cultural expressions or knowledge or indigenous works, to seek the community's prior informed consent, negotiate mutually agreed terms and beneﬁt-sharing agreements;

“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;

“Council” means the National Council for Indigenous Knowledge contemplated in section 28L;

“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;

“database” means the National Database for Indigenous Knowledge contemplated in section 28C;

“derivative indigenous work” means any work forming the subject of this Act, applied to any form of indigenous work recognised by an indigenous community as having an indigenous or traditional origin, and a substantial part of which, was derived from indigenous cultural expressions or knowledge irrespective of whether such derivative indigenous work was derived before or after the commencement of the Intellectual Property Laws Amendment Act, 2013;

“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;

“Fund” means the National Trust Fund for Indigenous Knowledge established in terms of section 28I;

“indigenous community” means any recognisable community of people originated in or historically settled in a geographic area or areas located within the borders of the Republic, as such borders existed at the date of commencement of the Intellectual Property Laws Amendment Act, 2013, characterised by social, cultural and economic conditions which distinguish them from other sections of the national community, and who identify themselves and are recognised by other groups as a distinct collective;

“indigenous cultural expressions or knowledge” means any form, tangible or intangible, or a combination thereof, in which traditional culture and knowledge are embodied, passed on between generations, and tangible or intangible forms of creativity of indigenous communities, including, but not limited to—

phonetic or verbal expressions, such as stories, epics, legends, poetry, riddles and other narratives, words, signs, names or symbols;

musical or sound expressions, such as songs, rhythms, or instrumental music, the sounds which are the expression of rituals;

expressions by action, such as dances, plays, ceremonies, rituals, expressions of spirituality or religion, sports, traditional games, puppet performances, and other performances, whether fixed or unfixed; or

tangible expressions, such as material expressions of art, handicrafts, architecture, or tangible spiritual forms, or expressions of sacred places;

“indigenous work” means a literary, artistic or musical work with an indigenous or traditional origin, including indigenous cultural expressions or knowledge which was created by persons who are or were members, currently or historically, of an indigenous community and which literary, artistic or musical work is regarded as part of the heritage of such indigenous community;

“infringing copy”, in relation to—

a literary, musical or artistic work or a published edition or a traditional work, 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;

“National Trust” means the National Trust for Indigenous Knowledge established by section 28I;

“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 Commissioner appointed in terms of section 189 of the Companies Act, 2008;

“regulation” means a regulation made under this Act;

“reproduction”, in relation to―

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

an artistic work or a traditional 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

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;

“traditional work” includes a derivative indigenous work and an indigenous work;

“work” means—

a work as contemplated in section 2; and

for purposes of this Act, a traditional work and indigenous cultural expressions or knowledge as contemplated in this Act;

“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 2A

28A. (1) Subject to the provisions of this chapter, the provisions of this Act shall, except in so far as is otherwise provided in the said chapter, and in so far as they can be applied, apply to traditional works.

(2) Nothing in this chapter shall be construed as conferring any rights on any person in respect of intellectual property which is not a traditional work.

  28B. (1) Subject to the provisions of this Act, traditional works shall be eligible for copyright.

(2) Notwithstanding section 2(2), a traditional work shall not be eligible for copyright unless it has been written down, recorded, represented in digital data or signals, or otherwise reduced to a material form or is capable of substantiation from the collective memory of the relevant indigenous community.

(3) Copyright shall be conferred on a traditional work only if—

the traditional work is a derivative indigenous work and was created on or after the date of commencement of the Intellectual Property Laws Amendment Act, 2013, and the indigenous community from which the work, or a substantial part thereof originated, is or was an indigenous community when the work was created; or

the traditional work is an indigenous work.

(4) No right in a derivative indigenous work provided for in the Intellectual Property Laws Amendment Act, 2013, shall be eligible for registration unless—

prior informed consent has been obtained from the relevant authority or indigenous community;

disclosure of the indigenous cultural expressions or knowledge have been made to the Commission; and

a benefit-sharing agreement between the applicant and the relevant authority or indigenous community has been concluded.

(5) If an indigenous community has established a community protocol, the interaction with the indigenous community contemplated in subsection (4) must take such community protocol into account.

  28C. (1) There shall be kept in the prescribed manner, at the offices of the registrars of patents, copyright, trade marks and designs, databases for indigenous knowledge as part of existing intellectual property registers, where applicable.

(2) The databases contemplated in subsection (1) shall form subsections of existing intellectual property registers and shall incorporate separate sections for the recording of information on different manifestations of indigenous cultural expressions or knowledge, as contemplated in subsection (3).

(3) All information submitted to the registrar regarding manifestations of indigenous cultural expressions or knowledge shall be recorded in the databases in the appropriate sections in the prescribed manner.

(4) Registration in respect of a traditional work shall be for the purposes of recordal of ownership and identification of representation within an indigenous community.

(5) The databases may be kept in an electronic format, and shall be open for inspection by the public during office hours, upon payment of the prescribed fee.

(6) The registrars of patents, copyright, trade marks and designs may request any relevant person to provide them with such information or advice as they may require in order to assess a request for recording as contemplated in subsection (7), or to maintain the databases.

(7) Any—

person who is an author;

person authorised to act on behalf of an author; or

person appointed by the Minister in the manner prescribed, to act on behalf of an indigenous community which is no longer in existence,

may, for the purposes of recordal, submit to the registrars of patents, copyright, trade marks and designs a request together with the appropriate information as prescribed, for a manifestation of indigenous cultural expressions or knowledge to be recorded in the relevant database.

(8) If the applicant for registration is an existing indigenous community, the request referred to in subsection (7) shall include a community protocol setting out relevant information about the indigenous community including—

identification of the indigenous community and its acknowledged structure;

full details of the appointed representative of the indigenous community in whose name the copyright must be registered;

if the representative is a juristic person, full details of registration of such juristic person;

the indigenous work that is being recorded and the justification for the indigenous community claiming rights to it;

whether such indigenous work is sacred, or should for any other reason, which must be provided, be kept confidential; and

a written undertaking by the representative of the indigenous community to the effect that he or she will hold the copyright on behalf of the indigenous community.

(9) The Council shall assist the indigenous community to ensure that the community protocol corresponds with the structure of the indigenous community.

(10) The community protocol must be kept with the recordal of the indigenous work.

(11) If the registrars of patents, copyright, trade marks and designs are satisfied that a request for recording meets with the prescribed requirements for recording, he or she shall accept the request and, within the prescribed period, cause the request to be published in the prescribed manner.

(12) Any person may, within three months from the date of publication of the request contemplated in subsection (11), or such further period as the registrars of patents, copyright, trade marks and designs may upon application allow, oppose the recording by lodging with the registrars of patents, copyright, trade marks and designs a notice of opposition setting out the grounds on which he or she relies to support the opposition.

(13) An opposition contemplated in subsection (12) shall be dealt with in the manner prescribed, and at the conclusion thereof the registrars of patents, copyright, trade marks and designs shall decide either to—

refuse the recording of the information concerned;

record the information; or

record the information subject to certain conditions.

(14) A recording as contemplated in this section shall serve as prima facie proof of the existence of the manifestation of indigenous cultural expressions or knowledge and the veracity of the information recorded, but shall not give rise to any rights other than expressly provided in this Act or in the Performers' Protection Act, 1967 (Act No. 11 of 1967), the Trade Marks Act, 1993 (Act No. 194 of 1993), or the Designs Act, 1993 (Act No. 195 of 1993).

(15) The Commission may determine which information recorded in the databases must be treated confidentially: Provided that if the community protocol indicates that the information is sacred or must be kept in confidence, the Commission must treat the information confidentially.

(16) Any person contemplated in subsection (7), or a third party who has an interest in a traditional work may submit to the registrars of patents, copyright, trade marks and designs a request together with the appropriate information as prescribed, for the amendment or removal of a traditional work in the database.

(17) Upon receipt of a request to amend or remove any indigenous cultural expressions or knowledge recorded in a database, the registrars of patents, copyright, trade marks and designs shall—

where the request did not originate from the owner or proprietor of the indigenous cultural expressions or knowledge—

notify said owner or proprietor of the request;

require a written response from said owner or proprietor to be submitted to the registrars of patents, copyright, trade marks and designs within a stipulated time frame;

upon receipt of the written response from the said owner or proprietor, refer the matter for dispute resolution as set out in section 28K; and

implement the decision of the dispute resolution institution referred to in section 28K; or

where the request originated from the owner or proprietor of the indigenous cultural expressions or knowledge—

consider the request as set out in subsection (16); and

consider any opposition received as set out in subsection (12).

(18) The Minister may, in consultation with the Minister of Finance, prescribe the tariff of fees payable for access by any person to the databases.

  28D. (1) For the purposes of this Act, an indigenous community is deemed to be a juristic person.

(2) Subject to the provisions of this section as well as section 21, the ownership of any copyright conferred by sections 3 and 28B on any traditional work shall vest in the author.

(3) The ownership of any copyright conferred by sections 3 and 28B, shall vest in the National Trust established by section 28I, to be administered for the benefit of the relevant indigenous communities, in the manner prescribed in section 28I, if—

the author cannot be determined;

the author is an indigenous community which is no longer in existence; or

the authorship cannot be shared between more than one indigenous community claiming authorship, for whatever reason.

  28E. (1) Copyright in a traditional work vests the exclusive right to do or to authorise the doing of any of the following acts in the Republic:

Reproducing the traditional work in any manner or form;

reproducing the cinematograph film in which the traditional work is included in any manner or form, including making a still photograph thereof;

publishing the traditional work if it was hitherto unpublished;

in the case of a traditional work of a literary or musical nature, performing the traditional work in public and broadcasting the work or causing a communication to the public of the work, by wire or wireless means, including the making available to the public of the work in such a way that members of the public may access the work from a place and at a time individually chosen by them;

in the case of a traditional work of a musical or artistic nature, or a traditional work of a literary nature in the form of a dramatic work, to include the traditional work in a cinematograph film, television broadcast or a sound recording;

broadcasting the traditional work, or the cinematograph film or sound recording in which the traditional work is included;

causing the cinematograph film in which the traditional work is included, 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, or causing a communication to the public of the said cinematograph film, by wire or wireless means, including the making available to the public of the said cinematograph film in such a way that members of the public may access the said cinematograph film from a place and at a time individually chosen by them;

communicating the sound recording in which the traditional work is included to the public;

letting, or offering or exposing for hire by way of trade, directly or indirectly, a copy of the cinematograph film or a reproduction of the sound recording in which the traditional work is included;

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

making, directly or indirectly, a record embodying the sound recording in which the traditional work is included;

making an adaptation of the traditional work; and

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

(2) The exclusive right vested under subsection (1) shall be exercised subject to any rights in respect of the traditional work acquired by any person prior to the commencement of the Intellectual Property Laws Amendment Act, 2013.

  28F. (1) The term of copyright conferred on traditional works by this Act shall be, in the case of—

a derivative indigenous work referred to in section 28B(3)(a), 50 years from the end of the year in which—

the work was first communicated to the public with the consent of the author or authors; or

the date of the death of the author or all authors concerned,

whichever term expires last; and

an indigenous work referred to in section 28B(3)(b), in perpetuity.

(2) Notwithstanding section 5, copyright in an indigenous work that vests in the State as a result of the provisions of this Act shall be perpetual in nature.

  28G. (1) Sections 12 to 19B shall, with the necessary changes required by the context, apply to a traditional work, in so far as they can be applied to the specific traditional work.

(2) The copyright in a traditional work shall not be infringed by a person if that person—

has acquired rights in respect of that work by doing any of the acts referred to in section 28E prior to the commencement of the Intellectual Property Laws Amendment Act, 2013; and

continues to perform such act,

and save for the obligations contemplated in subsections (3) and (5), such person shall continue to hold his or her copyright in the manner he or she has done prior to the commencement of the Intellectual Property Laws Amendment Act, 2013.

(3) Any person who has acquired rights as contemplated in subsection (2), must comply with section 28B(4)(b) and (c), within 12 months after the commencement of the Intellectual Property Laws Amendment Act, 2013: Provided that the rights of the indigenous community to royalties or benefits or both such royalties and benefits shall come into existence on the commencement of the Intellectual Property Laws Amendment Act, 2013.

(4) Any person who intends to acquire rights pertaining to doing any of the acts referred to in section 28E in respect of an indigenous work after the commencement of the Intellectual Property Laws Amendment Act, 2013, must comply with section 28B(4).

(5) If any commercial benefit is derived from acts contemplated in subsections (2) or (4) the person who derived such benefit shall pay a royalty, or a benefit, or both such royalty and benefit, to the author as set out in section 28H(3).

(6) Any person deriving commercial benefit from the use of a traditional work, the value of which is less than the prescribed value shall be excluded from the requirements of sections 28B(4), 28C and 28H.

(7) A traditional work may be used without obtaining prior consent of the copyright owner, if it is for the purpose of—

private study or private use;

professional criticism or review;

reporting on current events;

education;

scientific research;

legal proceedings; or

the making of recordings and other reproductions of indigenous cultural expressions or knowledge for purposes of their inclusion in an archive, inventory, dissemination for non-commercial cultural heritage safeguarding purposes and incidental uses:

Provided that only such excerpts or portions as is reasonably required are used and that the copyright owner's name is acknowledged.

  28H. (1) The content of sections 6, 7, 8 and 9 shall with the necessary changes required by the context, apply to traditional works, in so far as they can be applied to the specific traditional work.

(2) 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); or

show, broadcast or cause the transmission of a cinematograph film recording a traditional work, or include a traditional work in a cinematograph film or a television broadcast as contemplated in section 28E(1),

without payment of a royalty, a benefit, or both such royalty and benefit, to the owner of the relevant copyright.

(3) The amount of any royalty, benefit, or both such royalty and benefit due for the use of traditional work shall be determined by—

an agreement between the user of the traditional work and the owner of the copyright in such work, or between their representative collecting societies; or

in the absence of an agreement as contemplated in subsection (a) being reached, the amount or value of the royalty, benefit, or both such royalty and benefit, shall be determined by

an institution accredited by the Commission as contemplated in section 28K(1);

the Copyright Tribunal referred to in section 29(1); or

arbitration in terms of the Arbitration Act, 1965 (Act No. 42 of 1965):

Provided that if the persons referred to in paragraph (a) cannot agree on which referral to follow in terms of this subsection within a reasonable period, any of the persons may refer these disputes for resolution in terms of section 28K.

(4) Agreements concluded in terms of sections 28G(3), 28G(4) and subsection (3)(a) must be submitted to the Council, who shall—

scrutinise the agreement for compliance with intellectual property laws, the community protocol and this Act; and

where any clause within the contract is regarded as not being to the benefit of the indigenous community or member of the indigenous community concerned, require renegotiation of said clause and provide the necessary advice.

(5) The owner of copyright in a derivative indigenous work shall pay a royalty, a benefit, or both such royalty and benefit, agreed to as set out in this section, to the owner of the copyright in the indigenous work from which the derivative indigenous work was derived.

 <section begin="s28I" /> 28I. (1) There is hereby established a National Trust to be known as the National Trust for Indigenous Knowledge, and the Minister shall appoint not more than five persons as trustees for the National Trust.

(2) The National Trust shall be responsible for the promotion and preservation of indigenous cultural expressions and knowledge, including, but not limited to—

the commercialisation and exploitation of indigenous cultural expressions or knowledge for the purpose of generating income;

facilitating the development of indigenous communities with respect to training on, and awareness of, their intellectual property and associated rights; and

assisting indigenous communities in the application of this Act and other legislation dealing with indigenous cultural expressions or knowledge.

(3) The National Trust shall establish a Fund to be known as the National Trust Fund for Indigenous Knowledge.

(4) The trustees of the National Trust shall administer the Fund in the prescribed manner and may invest monies received from the commercialisation of indigenous cultural expressions or knowledge or otherwise, pending the distribution thereof—

on a call or short-term fixed deposit with any registered bank or financial institution in the Republic; or

in an investment account with the Corporation for Public Deposits established in terms of section 2 of the Corporation for Public Deposits Act, 1984 (Act No. 46 of 1984).

(5) The Fund may be subdivided, in whole or in part, into separate sub-funds which may be administered on behalf of and at the request of the National Trust by the registrars of patents, copyright, trade marks and designs, respectively.

(6) All income derived by the National Trust from the use of indigenous cultural expressions or knowledge, including all royalties and benefits payable as provided for in—

this Act;

the Performers' Protection Act, 1967 (Act No. 11 of 1967);

the Patents Act, 1978 (Act No. 57 of 1978);

the Trade Marks Act, 1993 (Act No. 194 of 1993); and

the Designs Act, 1993 (Act No. 195 of 1993),

shall be National Trust monies and shall be paid into the respective sub-funds, to be applied for the benefit of indigenous communities: Provided that the Minister may prescribe—

administration fees;

fees relating to commercialisation, exploitation and training of indigenous communities;

the frequency and manner in which payments shall be made to indigenous communities; and

any other matter related to the administration of the income received by the Fund.

(7) The Commission shall be responsible for the administration of the National Trust.

(8) Notwithstanding the provisions of this section, any indigenous community may establish a legal entity, business or other enterprise to promote or exploit indigenous cultural expressions or knowledge: Provided that any commercial benefit derived shall only be subject to royalties, benefits or licence fees once, which royalties, benefits or license fees may be paid to the Fund, if the Fund is the owner, by the indigenous community.

(9) Nothing in this Act, or in the Acts referred to in subsection (6) shall prohibit an indigenous community from requesting the National Trust to collect, manage and distribute royalties, benefits or license fees on its behalf against payment of a prescribed fee.

<section end="s28I" /> <section begin="s28J" /> 28J. (1) Save for—

assignment of copyright to a collecting society; or

the transfer to a duly appointed representative of the indigenous community,

the copyright in an indigenous work shall not be transmissible by assignment, testamentary disposition or operation of law, but the doing of any act which is the subject of the copyright as contemplated in section 28E may be licensed.

(2) Should the copyright referred to in subsection (1) vest in a representative of an indigenous community, whether a natural or juristic person, the indigenous community may—

upon the death or liquidation of the said representative, as the case may be; or

prior to the death or liquidation of the said representative,

by agreement as set out in the community protocol, transfer such copyright to a natural or juristic person, as the indigenous community may decide.

(3) Should the copyright referred to in subsection (1), vest in a representative of an indigenous community, such copyright shall automatically upon the death of the last living member of such indigenous community transfer to the National Trust.

<section end="s28J" /> <section begin="s28K" /> 28K. (1) The Commission must accredit certain institutions which have the necessary capacity, to adjudicate any dispute arising from the application of the Intellectual Property Laws Amendment Act, 2013.

(2) Any dispute arising from the application of the Intellectual Property Laws Amendment Act, 2013, must first be instituted in an institution accredited as contemplated in subsection (1).

(3) No person appearing in proceedings before an institution contemplated in subsection (1) shall have the right to legal representation unless—

the adjudicator and all other parties consent; or

the adjudicator, after considering

the nature of the questions of law raised by the dispute;

the relative complexity and importance of the dispute; and

the comparative ability of the parties to represent themselves in the adjudication,

concludes that it would be unreasonable to expect the party to deal with the adjudication without legal representation.

(4) Any adjudication must take into account existing customary dispute resolution mechanisms.

(5) The decision of the institution referred to in subsection (1) may be served, executed and enforced as if it was an order of the High Court.

(6) Any party to proceedings before an institution referred to in subsection (1) may appeal to a court of law against any decision of such institution, and the appeal must be noted and dealt with in the manner prescribed by law for appeals against a civil order or decision of a single judge.

(7) The Minister shall prescribe the fees, processes and formalities relating to the institution and adjudication of a dispute.

<section end="s28K" /> <section begin="s28L" /> 28L. (1) The Minister shall establish a National Council for Indigenous Knowledge.

(2) The Council shall consist of not less than 15 members, appointed by the Minister.

(3) The Minister shall designate one of the members of the Council as the Chairperson of the Council.

(4) Before appointing any person referred to in subsection (2), the Minister must—

by notice in the Gazette, and any other widely circulated means of communication call for nominees and state the criteria for such nominations;

specify a period within which nominations must be submitted; and

consider all nominations before making an appointment.

(5) In appointing the members of the Council, the Minister may consult—

the Ministers responsible for

agriculture;

arts and culture;

environmental affairs;

health; and

science and technology;

organised local government;

an association of traditional healers;

the National House of Traditional Leaders;

academia;

the legal profession;

organised commerce and industry; or

any other relevant body or institution.

(6) The Council shall—

be broadly representative of indigenous communities from different cultures within the Republic; and

at all times have as members—

at least two persons with expertise and extensive knowledge in, and patronage of, traditional cultures and values of indigenous communities;

at least two persons with expertise and extensive knowledge in, and patronage of, traditional artistic, literary, musical works and performing arts; and

at least two persons with expertise and extensive knowledge of the law.

(7) The Council shall have at least seven meetings per year and a quorum shall consist of half of the appointed members, plus one.

(8) The members of the Council are appointed on such terms and conditions, including remuneration, as may be determined by the Minister in consultation with the Minister of Finance.

(9) A member of the Council shall hold office for a period of three years and may be reappointed, upon the expiry of that period, for a further period of three years.

(10) For the sake of continuity, succession planning must include reappointment of members in such a manner that subsections (6) and (9) are always adhered to.

(11) The Minister may, subject to the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), remove a member of the Council for—

non-performance;

serious misconduct; or

conduct that undermines the integrity or objectives of the Council.

(12) Subject to the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), the Minister may dissolve the Council—

if the Council fails to perform its functions in an effective and efficient manner; and

on the grounds of mismanagement.

(13) When the Minister dissolves the Council in terms of subsection (12), the Minister may appoint an interim body for the continued governance and control of the affairs of the Council, on such conditions as the Minister may determine.

(14) The body contemplated in subsection (13) must be appointed for a period not exceeding six months or until the new Council is appointed in terms of subsection (2), whichever is the lesser.

(15) The Commission shall be responsible for the administration of the Council, and its subcommittees.

<section end="s28L" /> <section begin="s28M" /> 28M. (1) The Council shall—

advise the Minister on any matter concerning indigenous cultural expressions or knowledge;

advise the registrars of patents, copyright, trade marks, and designs on any matter relating to the registration of indigenous cultural expres- sions or knowledge;

advise the Minister on matters relating to performances of traditional work;

advise on the integrity of a database of intellectual property in relation to indigenous cultural expressions or knowledge;

perform such further functions as provided for in the—

Patents Act, 1978 (Act No. 57 of 1978);

Trade Marks Act, 1993 (Act No. 194 of 1993);

Designs Act, 1993 (Act No. 195 of 1993); and

Performers' Protection Act, 1967 (Act No. 11 of 1967);

refer any dispute received, to an institution contemplated in section 28K(1); and

carry out such tasks as assigned to it from time to time by the Minister.

(2) The Council may—

appoint any person to assist the Council with the performance of any specific act, task or assignment, or to investigate any matter relating to its functions;

constitute and maintain such committees as it may deem necessary;

appoint as members of the committees any of its members and any other persons, for such periods of time as the Council may determine; and

refer to such committees any tasks or matters as may be necessary to enable the Council to carry out its functions.

(3) The Minister may, in consultation with the Minister of Finance, prescribe the tariff of fees payable for—

any work performed or services rendered by any person at the specific request or instruction of the Council;

access by any person to the results of, or other information in connection with any research performed or information collected by the Council; and

access by any person to the databases contemplated in section 28C.

(4) The Council may recommend to the Minister appropriate measures to ensure the effective implementation of the Act in relation to all matters pertaining to indigenous cultural expressions or knowledge relating to performers' rights, copyright, trade marks, designs and patents.

<section end="s28M" /> <section begin="s28N" /> 28N. (1) The Minister may by notice in the Gazette provide that any provision of this Act specified in such notice shall, in the case of any country so specified, apply so that—

a community recognised in the specified country as an indigenous community shall be deemed to be an indigenous community as defined in this Act; and

a traditional work recognised in the specified country as a traditional work shall be deemed to be a traditional work as defined in this Act.

(2) The Minister may in the notice contemplated in subsection (1) make the provisions of this Act applicable to the following in respect of a country listed in the notice:

Its citizens or subjects;

persons who at material times are domiciled or resident in the listed country and who are members of an indigenous community in that country; and

juristic persons incorporated under the laws of the specified country and representing indigenous communities of that country.

(3) The notice referred to in subsection (1) may—

include exceptions or modifications to the application of the Act in respect of a specified country;

provide for general application of the Act; or

limit application of the Act to such types of traditional works as may be specified.

(4) No notice shall be issued under this section in respect of any country which is not a party to a convention relating to copyright to which the Republic is also a party, unless the Minister is satisfied that, in respect of the class of works to which the notice relates, provision has been or will be made under the laws of that country whereby adequate protection will be given to owners of copyright in traditional works under this Act.

<section end="s28N" />

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, the Council referred to in section 28L, and of their 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 whether in respect of copyright or any other type of intellectual property;

providing for the recording of indigenous cultural expressions or knowledge as contemplated in section 28C, including issues related to—

the manner in which information on indigenous cultural expressions or knowledge is kept;

fees payable for access to inspect the databases;

processes and formalities related to the submission of an application; and

criteria to be met for indigenous cultural expressions or knowledge to be entered into the databases;

prescribing the nature of the entities envisaged by section 28I(8) including issues related to—

governance of the entities; and

interaction of the entities with the National Trust and the Council;

providing for the fees, processes and formalities related to the submission and adjudication of a dispute set out in section 28K; and

providing for the appointment of a person to act on behalf of an indigenous community which is no longer in existence;

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.

<section begin="s39A" /> 39A. (1) The Minister may issue guidelines on any aspect of the Intellectual Property Laws Amendment Act, 2013, including—

protection of indigenous cultural expressions or knowledge;

reducing traditional work that is eligible for copyright due to it being capable of substantiation from the collective memory of the relevant indigenous community, to material form for purposes of protection thereof;

the databases, in so far as it relates to indigenous cultural expressions or knowledge;

the National Trust and Fund, in so far as it relates to indigenous cultural expressions or knowledge;

the Council, in so far as it relates to indigenous cultural expressions or knowledge; and

the dispute process as set out in section 28K.

<section end="s39A" />