SOUTH AFRICA Law and Practice Contributed by: Daniel Pekar, André du Plessis, Sarah Suleman and Shaawn Phooko, KISCH IP
works, there are exceptions to this general rule, as outlined in Section 21 of the Copyright Act 98 of 1978: • Literary and artistic works made in the course of employment at a newspaper/magazine/similar peri - odical for purposes of being published in the news - paper/magazine – the proprietor of the newspaper/ magazine/similar periodical is the owner of the copyright in so far as it relates to the publication of the work or to reproduction of the work for it to be published. Notably, the author remains the owner of the copyright in the work in all other respects (ie, using the work in a film). • Where a person commissions another to take a photograph, paint/draw a portrait, make a gravure or make a cinematograph film, audiovisual work or sound recording and pays/agrees to pay for the work – the person paying for the work is the owner of the copyright therein. • Works made in the course and scope of employ - ment (not falling within the above-mentioned categories) – the employer will be the owner of the copyright in the work, provided there was a con - tract of service in place. This exception does not apply to freelance workers. Copyright in Works Created by AI A work created by AI qualifies as a computer-gener - ated work. By way of example, an image generated through an AI platform will be a computer-generated artistic work. As mentioned earlier, the Copyright Act 98 of 1978 provides that the author of a computer- generated work is the person who made arrangements for the creation of the work. On this basis, it may be argued that the person who entered the prompt on an AI platform made the necessary arrangements for the creation of the work and is therefore the author of the work. At this point in time, there is no certainty on this aspect and the aforementioned argument is merely speculative – given that this aspect has not been tested in any South African court. Joint Authorship The Copyright Act 98 of 1978 makes provision for joint authorship, which arises when a work is pro - duced through the collaboration between two or more authors in which the contribution of each author can - not be separated from the contribution(s) of the other.
Determining whether two or more persons are joint authors of a work is done on a case-by-case basis. The main consideration is whether there has been collaboration between the authors from the outset whereby their contributions are directed towards the creation of one inseparable work. On the assumption that the joint authors are also the joint owners of the copyright in a work, their rights are as follows: • Exploiting the copyright – a co-owner of copyright in a work may not use or exploit the rights com - prised in their copyright without the consent of the other co-owner. • Enforcing the copyright – each co-owner may enforce the copyright against third parties without the consent/co-operation of the other co-owner. Joint authors own an equal percentage of the work. 3.4 Copyright Rights Owning the copyright in a work affords the owner exclusive rights in relation to the given work. These exclusive rights are referred to as “restricted acts” and are determined in reference to the type of work. Broadly speaking, these acts include the right to reproduce the work and make an adaptation of the work the author of the work. These rights are the “right of integrity” and the “right of paternity”. The moral rights are applicable to literary, musical or artistic works, cinematograph films and computer programs. The scope of these rights is as follows: • Right of integrity – this entitles the author to object to any distortion, mutilation or other modification of the work where such action would be prejudicial to their honour or reputation. • Right of paternity – this allows the author to claim authorship of their work and ensure that they are acknowledged as the author of a work. 3.5 Term of Protection and Termination The term of copyright protection applicable is deter - mined with reference to the type of work at issue. The general term of protection for the respective works is as follows:
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