Automatic Copyright: No Registration Needed

South Africa adheres to the Berne Convention, an international treaty establishing minimum copyright standards. Under the Berne Convention, copyright arises automatically upon creation in member countries, which is most of the world. Registration isn't a requirement for copyright to exist.

Therefore, one does not have to register a work in order to receive copyright protection for that work. However, this type of statement may lead to some confusion.

This often leads to the misconception that:

“Copyright protection kicks in automatically upon creating a work.”

The above statement is not true. The reason being that there are two questions which have to be answered in the affirmative for the above statement to be true. These two questions are answered as follows:

First Question: Do I have to register my work for copyright protection to apply?

Answer: No, registration is not required for your work to receive copyright protection.

Second Question: Does my work qualify to receive copyright protection?

Answer: Only if the work created complies with the requirements set out in the Copyright Act 98 of 1978. For copyright to apply, certain conditions must be met. These requirements can be simplified as the following three:

• Originality
• Fixation in a tangible medium
• Author’s nationality or domicile

When Does Copyright Apply to a Work | Copyright Act 98 of 1978

The Copyright Act 98 of 1978 is South Africa's primary legislation regarding copyright law. It outlines the types of works eligible for protection, the duration of that protection, and the circumstances under which copyright is granted. Additionally, it provides guidance on the enforcement of copyright, remedies available for infringement, and exceptions to copyright protection.

Copyright grants the owner the exclusive rights to reproduce, distribute, display, and perform their work, as well as to authorize others to do so. It is a form of intellectual property designed to protect the expression of ideas, not the ideas themselves.

In simple terms, copyright prevents unauthorized use of original works. It ensures that creators can benefit economically and morally from their creations while controlling how those creations are used.

Section 3 of the Copyright Act 98 of 1978sets out when copyright comes into existence. Copyright subsists in original works of a specified type, provided they meet the criteria of fixation and originality.

Requirements for Copyright Protection

Originality of the Work

The work must be original in that it must result from the creator’s own intellectual effort. This is a subjective standard, but it implies that the work must not be a mere copy of another existing work.

Fixation of the Work in a Tangible Medium

Copyright only protects works that are fixed in a tangible form, such as written text, a recorded song, or a digital file. Ideas, thoughts, or concepts alone are not protected until they are expressed in a fixed medium.

Nationality or Domicile of the Author

To qualify for copyright protection in South Africa, the author must either be a South African citizen or domiciled in the country. Alternatively, the work must have been first published in South Africa or a reciprocal country.

Categories of Works Protected Under the Copyright Act

Not all works are automatically protected by copyright law. The Act specifies which categories of works are eligible for protection, emphasizing that only original works fixed in a tangible medium can be protected.

The Act outlines several categories of works that enjoy copyright protection. Each category has specific characteristics that must be met for copyright to apply.

Categories	Description
Literary Works	Literary works include written content such as novels, articles, essays, and even computer programs. Under Section 2, the originality of the content is crucial for protection.
Musical Works	Musical compositions, including sheet music and written lyrics, are protected under the Act. It's important to note that performances of musical works may also enjoy separate protection as performances.
Artistic Works	Paintings, sculptures, and architectural drawings are all classified as artistic works. These works must be original and fixed in a tangible medium.
Cinematograph Films	Cinematograph films, which include movies, documentaries, and other filmed content, are considered protected works under the Act. Copyright extends not only to the film itself but also to the screenplay and score.
Sound Recordings	Sound recordings of performances or other works are protected separately from the original musical composition or script. This includes recorded music, audiobooks, and similar formats.
Broadcasts	Radio and television broadcasts, protecting the content that is transmitted over airwaves. This includes the programs and the arrangement of those programs.
Published Editions	The typographical arrangement of published works, such as books and magazines. This includes the specific layout and design of the text and images in the publication.

Exceptions and Limitations to Copyright

The Act also provides for certain exceptions where copyright protection may not apply, such as under the doctrine of "fair dealing," which allows limited use for purposes such as criticism, review, or education.

Section 12 introduces the concept of fair dealing, which permits limited use of copyrighted works without the need for permission. Common scenarios include quoting parts of a work for the purpose of criticism or using a work for educational purposes.

The Act permits certain uses of copyrighted works for educational or research purposes. This ensures that knowledge and cultural advancements are not stifled by strict copyright restrictions. Educational institutions and researchers can use portions of a work without obtaining explicit permission, provided the use is reasonable and properly attributed.

Exclusions: What is Not Protected?

Section 22: Duration of Copyright for Different Types of Works

Section 22 outlines the duration of copyright for different types of works. Literary, musical, and artistic works are protected for the lifetime of the author plus 50 years after their death. Cinematograph films, sound recordings, and broadcasts typically enjoy protection for 50 years from the date they were first made public.

Conclusion

Copyright applies automatically when an original work is fixed in a tangible form, with protection lasting for a specific period, depending on the type of work. Key sections of the Act, such as Sections 3, 4, 21, 22, and 23, outline the criteria for copyright subsistence, ownership, duration, and remedies for infringement. While the Act offers protection, there are also exceptions, such as fair dealing for educational or research purposes. To ensure copyright protection, creators must ensure their work is original, fixed in a tangible medium, and that the author meets the nationality or domicile requirements.