SOUTH AFRICA Law and Practice Contributed by: Roberto Barreiro, André du Plessis, Sarah Suleman and Shaawn Phooko, KISCH IP
a three-dimensional article that has been made available to the public, is of a utilitarian nature, and is multiplied by industrial process. 3.2 Essential Elements of Copyright Protection In order to qualify for copyright protection, a work (as defined in the Copyright Act 98 of 1978) must meet the following criteria. • It must be original in that it is a product of one’s own efforts and should not have been copied from another work. • The work must be reduced to material form, as copyright does not subsist in an idea/con - cept. • The author is a qualified person or the work was first published in a Berne Convention country. A “qualified person” is a South African citizen or someone who is domiciled in South Africa or, in the case of a juristic person, an entity that is incorporated in South Africa. 3.3 Copyright Authorship The term “author” is defined in the Copyright Act 98 of 1978 in relation to the type of work: • literary, musical or artistic works – the person who first makes or creates the work; • photographs – the person who is responsible for the composition of the photograph; • sound recordings – the person by whom the arrangements for the making of the sound recording were made; • cinematograph films – the person by whom the arrangements for the making of the film were made; • broadcasts – the first broadcaster thereof; • programme-carrying signals – the first person emitting the signal to a satellite;
• published editions – the publisher of the edi - tion; • literary, dramatic, musical or artistic work or computer program that is computer-gener - ated – the person who made the necessary arrangements for the creation of the work to be undertaken; and • computer program – the person who exer - cised control over the making of the com - puter program. Commissioned Works and Works Made in the Course of Employment As a general rule, the author is the owner of the copyright in a work. However, in the case of commissioned 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 periodical for purposes of being published in the newspaper/magazine – the proprietor of the newspaper/magazine/simi - lar 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, make a cinematograph film, an audiovisual work or a sound recording and pays/agrees to pay for the work – the person paying for the work is the owner of the copy - right therein. • Works made in the course and scope of employment (not falling within the above- mentioned categories) – the employer will be the owner of the copyright in the work, pro - vided there was a contract of service in place.
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