What you should know about copyright as an author or creator
Provided by KISCH IP
With an entrenched history in Africa, KISCH IP has, for the last 145 years, assisted clients from small to large businesses in all sectors, in safeguarding their intellectual property rights. While acknowledging our establish... more
14 Aug 2018
The Copyright Act does not require registration in order to acquire copyright in respect of a particular work. Instead copyright subsists automatically once a work has been completed, provided that certain requirements are met.
Firstly, the work must be original. What this means is that the work does not have to be inventive as such but must have been created as a result of the author’s own original labour and skill.
Secondly, it must be reduced to writing or recorded in some material form i.e. it must have a tangible existence as there is no copyright in ideas or concepts.
Additional requirements are that the author must have been a qualified person at the time the work or a substantial part thereof was created. In other words, if the author is a natural person, he/she must either be a South African citizen, domiciled in South Africa or a citizen of a Berne Convention country. In the case of a juristic person, it must be a body incorporated under the laws of South Africa or those of a Berne Convention country. If the author is not a qualified person, the work must first be published in or made in South Africa or in a Berne Convention country.
Furthermore, the Copyright Act only confers copyright in respect of certain specified categories of works. Such works include literary works, musical works, artistic works, cinematograph films, sound recordings, broadcasts, program-carrying signals, published editions, and computer programs. Consequently, and in addition to meeting all the above requirements, the particular work must also fall within one of the aforementioned categories.
A novel (or story) would fall within the category of a literary work as well as a published edition (once it is published).
The term of copyright conferred in the case of a literary work, for example, is 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:
- the publication thereof;
- the performance thereof in public;
- the offer for sale to the public of records thereof; and/or
- 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.
The next question the author needs to ask is whether he/she is going to publish the book by himself/herself or whether he/she is going to enter into a publishing agreement with a publisher to publish the novel. In the latter case, the publisher would, in all probability, take assignment of the copyright and generally the author would have to agree to the respective terms and conditions of the publisher’s standard agreement.
The duration of copyright for published editions is fifty years from the end of the year in which the edition is first published. 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 shorter.
In terms of the Act, the general rule is that the author is the owner of copyright of the work that he/she has created. However, there are certain exceptions, as set out hereunder.
Where a literary or artistic work is made by an author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and is made for the purpose of publication in a newspaper, magazine or similar periodical, the proprietor will be the owner of the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical or to reproduction of the work for the purpose of its being published therein, but in all other respects the author shall be the owner of any copyright subsisting in the work.
Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a sound recording and pays or agrees to pay for it in money or money’s worth, and the work is made in accordance with that commission, that person shall, be the owner of any copyright subsisting therein.
Where a work is made in the course of an author’s employment by another person under a contract of service or apprenticeship, that other person i.e. the employer will be the owner of any copyright subsisting in the work.
We would also suggest, that should you (as an author or creator) be contacting organizations to discuss your work, you should request such organizations to sign a Non-Disclosure Agreement. Our commercial department can gladly assist you in this regard.
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Natasha Mohunlal is an associate at KISCH IP's trade mark department. She specialises in trade mark prosecution, including trade mark availability searches and filings, as well as in litigation, including...
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