Original Copyright

Posted on Feb 3, 2010

Original Copyright

Originally drafted to allow the English Crown to profit from the reproduction of books, modern copyright law has become a complex, dynamic, liberal and indispensible mechanism for the protection and commercial exploitation of all types of personal expression.

Despite the name, copyright law is not limited to the right of copying work. It may be described as a bundle of rights that (1) define the author’s monopoly over work that embody his intellectual efforts and (2) determine the manner in which such a work may be used by the author or others.

Therefore, the author’s right to control the work for a limited period is an essential concept in copyright law. The bundle of rights conferred by copyright law, depending on the type of work, may extend to:

  • Reproducing the work (such as copying, remaking, quoting, digitising, printing, downloading),
  • Adapting the work (such as translating, amending, extracting, paraphrasing),
  • Publishing the work (if it was an unpublished before, including online publication),
  • Performing the work or causing it to be seen or heard in public (even where the performance is to a limited number of invited guests)
  • Letting or offering or exposing the work for hire
  • Broadcasting or transmitting the work (or including it in a film or TV broadcast)
  • Making a recording of the work
  • Distributing the work

Any person who performs any of these acts in relation to a protected work during the 50-year term of copyright protection may be guilty of infringing the author’s rights and liable for such conduct.

South African copyright law recognises the widest range of copyrightable work to address as many forms of intellectual expression as possible. To vest copyright protection, the author’s ideas must be expressed in any one of the following forms:

  • Literary work (The law does not require that the work have any literary merit. It is therefore possible to qualify for protection despite the complete absence of written quality or legibility. Any combination of letters of number will therefore qualify as a literary work. The Copyright Act further lists a series of examples such as a novel, story, poem, play, script, textbook, treaty, history, biography, essay, article, encyclopaedia, dictionary, letter, report, memorandum, lecture, speech, sermon, table or compilation of data),
  • Musical work (Any work that consists of musical notation and instructions for its performance. Any words or movements intended to be sung, performed or spoken with the music is not protected as part of the musical work, but may resort under dramatic works as a type of literary work),
  • Artistic work (Regardless of the artistic merit, appearance or quality of the work, copyright may vest in any painting, sculpture, drawing, engraving, photograph, work of architecture or work of craftsmanship),
  • Cinematograph films
  • Sound and TV broadcasts,
  • Programme-carrying signals,
  • Published editions (The first print of a specific arrangement of a literary or musical work),
  • Computer programs (Including the source and object code).

It is of course also possible to create a work that combines several types of copyrightable work, in which case the separate identifiable work will each be protected as such or the complete work may be protected as a published edition, film, broadcast or signal.

In South Africa, copyright is formality free. Therefore, the author of a qualifying type of work will be vested with the exclusive rights to his/her work automatically once the requirements for copyright protection are met. For this reason, copyright is said to subsist in a work, and no registration of copyright is necessary (or indeed possible).

The requirements, or rather conditions, for subsistence of copyright are:

The work must be original. This does not mean that the work must be novel, innovative, unique or even entirely created by the author. The originality requirement merely refers to the fact that the work must evidently be the result of the author’s own efforts to give expression to an idea. The fact that the work consists, wholly or in part, of work drawn from somewhere else (that may already be protected by copyright) does not prevent the final product from passing the originality test. Therefore, the first requirement for subsistence refers to the original efforts that the author invested in the work, and not the original result of his efforts.
The work must be reduced to material form. It is impossible to vest copyright in any ideas or concepts. Therefore copyright is said to protect only the expression of ideas. Thus, the fixation requirement dictates that a work is only eligible for protection once the author has recorded it in some material form. Prior to this fixation, no copyrightable work exists. As a result of continued development in copyright law the fixation requirement is met once the work is embodied in any manner or form. It is therefore necessary to record the work in analogue form (paper, tape, canvas, film) or any digital format of whatever nature (ROM, HDD, CD, DVD or any online manifestation of storage).
The work was produced by a citizen, resident or person domiciled in the Republic, or a national of any other nation that is also a signatory to the Berne Convention. Alternatively, the work was produced by a juristic person incorporated in the Republic or selected other countries, or first published (or made) in the Republic.

Once these requirements are met, the work is protected from the moment it is created for a period of 50 years. During this time the author may permit anyone to perform any of the restricted acts (such as print a copy of the book or perform the musical work), assign any or all of these rights to another party of permanently transfer the rights (by contract or operation of law).

Further, the author or owner (or exclusive license holder) of copyright is vested with the capacity to legally defend his/her rights and claim any of the available remedies for infringement. Once copyright expires, the work resorts in the public domain and may be freely used, adapted or distributed subject to certain limitations (such as the duty to recognise the original author of the work).

Finally, copyright protection also prevents the unauthorised dealing with or profiteering from infringing copies of the work as well as the production of, or facilitating the production of, such infringing copies. In addition, the Copyright Act criminalises the trade in, distribution of or importation of infringing work if the person(s) accused bear knowledge of the fact that such works constitute infringing copies.

However, as the creator of the public domain, copyright law allows the individual the right to draw from, build on, make copies of or use protected work (during the term of protection) for certain purposes. By allowing the use of protected work for personal reasons, private study, teaching or illustration, demonstration, reconstruction, quotation or reverse engineering (among others) the law further stimulates the production of intellectual works without diminishing the author’s ability to enjoy the fruits of his/her labours.

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