SA Copyright Law


The use of information is protected by copyright law. Everyone who uses information by making a copy, quoting information in an assignment, copying an electronic document, etc., needs to know how to apply the copyright law.


The following document was provided by the Publishing Liaison Office of the Cape Higher Education Consortium (CHEC):



What is copyright?


Is there a legitimate exemption for teaching purposes?


Who is the owner of copyright?


How long does copyright last?


What are the penalties for copyright infringement?


Why does the law require people to obtain permission and pay fees for photocopying?


How do I get copyright protection for my works?


Which works are protected by copyright?


Which works are not protected by copyright?


What is the difference between a copyright and a trademark or patent?


What about copyright in the Library?


Does copyright apply on the Internet and to e-mail?


How do I obtain copyright permission to use somebody else's work?


Practical copyright tips


What is copyright?

Copyright is part of a group of intellectual property rights, which provide legal protection to creators of works of the mind. Copyright in South Africa is governed by the Copyright Act No. 98 of 1978, as amended and the Regulations made in terms thereof and it grants owners of copyright (authors and other creators of intellectual property) the right to:


(However, subject to certain conditions and within specific limits, the Act and Regulations afford the lecturer and the student the right to make copies of copyrighted works without obtaining permission.)

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Is there a legitimate exemption for teaching purposes?

The law permits the making of limited numbers of copies without copyright permission for the following purposes:

Research or personal or private use

For the purpose of research or private study,

or for personal or private use


It is generally accepted that the copying of the whole or a major portion of the work in question is not reasonable and not compatible with fair dealing. The user may not make the copy available to others.


Copyright shall also not be infringed for the purposes of critical review or reporting of current events in a newspaper, film or broadcast.
Reproduction for Education Section 12(4) of the Act allows a work to be used without permission for teaching purposes:


"The copyright in a literary or musical work shall not be infringed by using such work, to the extent justified by the purpose by way of illustration in any publication, broadcast or sound or visual record for teaching: provided that such use shall be compatible with fair practice and that the source shall be mentioned as well as the name of the author if it appears on the work."



Multiple copies for classroom use According to Regulation 2 the reproduction of a work in terms of section 13 of the Act shall be permitted if "the cumulative effect of the reproduction does not conflict with the normal exploitation of the work to the unreasonable prejudice of the legal interest and residuary rights of the author"



Who is the owner of copyright?

The general rule is that the owner of copyright is the person who does the creative work: the author of the book or the designer of the Web site. There is however an important exception to this basic rule and that applies when the work is created by an employee within the scope of his or her employment. In this case the employer of the person who does the creative work is considered to be the copyright owner.



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How long does copyright last?

In a literary or artistic work, other than a photograph copyright endures for the lifetime of the author and 50 years after the author's death or 50 years after the posthumous first publication of his/her work. In a film, photograph or a computer program, copyright endures fifty years from the end of the year in which the work is made available to the public or after the work is first published, whichever is the longer period. The publishers also have copyright in respect of the published edition (i.e. the edited typeface used) even if the original material is no longer subject to copyright e.g. a new edition of a Shakespeare play.



What are the penalties for copyright infringement?

The author or holder of his/her license (in some cases) can take legal action where there is an infringement of his/her rights. The remedies provided include delivery of the infringing material, damages and an interdict preventing further infringement of his/her rights. The courts have the power to award additional damages where there has been a flagrant infringement of copyright.

The Copyright Act also makes provision for criminal penalties - a fine (of R5 000) and/or imprisonment of up to three years per infringement for a first conviction. The maximum fine and/or imprisonment penalty for second conviction is R10 000 and/or five years, per infringement.



Why does the law require people to obtain permission and pay fees for photocopying?

Copyright exists to foster the creation of all forms of intellectual property, including books. The copyright law gives creators of intellectual property a reasonable opportunity to be rewarded for their creative work. To the extent that copyrighted works are unlawfully copied; authors and publishers are deprived of their lawful income. This could reduce the incentive to write and publish books and, in the long run, harm education because investments of time and money in new books will not be made if others copy such books without compensation to the copyright owners.



How do I get copyright protection for my works?

Copyright protects original works of authorship and it is secured automatically when the work is expressed in some tangible form of expression: e.g. written down, recorded, painted or designed. It is however a good idea to indicate the copyright symbol or the word Copyright, the year of the first publication and the name of the copyright holder on the original work. Providing contact information where possible will also make it easier for those who want to seek permission to reproduce the work.



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Which works are protected by copyright?

Copyright applies to all original works which have been reduced to a material form and this may include any means of recording. These works include literary works; musical works; artistic works (including photographs, works of architecture and works of artistic craftsmanship); cinematographic films (and video recordings); sound recordings; broadcasts; programme-carrying signals; published editions, i.e. the first print, by whatever process, of a particular typographical arrangement of a literary or musical work; and computer programs. The terms "artistic or literary" are not to be interpreted in the sense of having artistic or literary merit - but that they are original creations reduced or recorded in a specific form.



Which works are not protected by copyright?

Several categories of works are generally not eligible for copyright protection: Works that have not been expressed in a tangible format (ideas cannot be protected), titles, names, short phrases, slogans, and works consisting entirely of information that is common property and containing no original authorship (the telephone directory, lists or tables taken from public documents etc.)



What is the difference between a copyright and a trademark or patent?

A copyright protects the expression of an idea (in tangible format). An invention cannot be copyrighted but it can be patented. You cannot copyright the name of a product or tradename but you can establish a trademark in a product name or a tradename.



What about copyright in the Library?

A library or archive depot has certain specific restricted rights to make copies of certain works for archival or reference purposes only and may:

duplicate a published work in its entirety for the purpose of replacement of a work that is lost, stolen, damaged or deteriorating if the library or archives, after reasonable effort, has determined that an unused replacement cannot be obtained at a fair price.
make copies for patrons
make copies for other libraries' patrons for the purposes of inter-library loan

There is a lack of clarity regarding copying in the library short loan and reserve sections since nothing in the existing Copyright Act or Regulations directly address this issue.



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Does copyright apply on the Internet and to e-mail?

The answer is yes. There is no real difference between copyright and electronic copyright since original works are also protected in electronic format. In South Africa, as a signatory to the Berne Convention for the Protection of Literacy and Artistic Works (an international treaty), the principle of "national treatment" applies, implying that South African legislation applies to Internet activities e.g. downloading information in this country.

When it comes to e-mail the sender or author of the e-mail message is the copyright owner, unless the sender is an employee writing the message in the course of his or her employment, then the employer is the copyright owner. With postings to a listserv, copyright to an individual posting made to any list is usually held by the individual who posted the message and the copyright to the compilation of the postings is usually held by the primary list owner or the sponsor.



How do I obtain copyright permission to use somebody else's work?

One should obtain permission from Dalro (Dramatic, Artistic and Literary Rights Organisation (Pty) Ltd) or from the owner directly for such reproduction.



DALRO represents in South Africa the rights of reprographic reproduction in the vast majority of books and journals published in South Africa, England, America, Australia, New Zealand, Canada, Ireland, France, Denmark, Norway, Germany and Switzerland, and application for permission to reproduce such works may be directed to:

DALRO (Pty) Limited
P O Box 31627
Braamfontein
2017
Tel: (011) 489-5000
Fax: (011) 403-9094
E-mail: dalro@dalro.co.za
Website: http://www.dalro.co.za

The following information must accompany each application for reprographic reproduction rights: (Forms are available from the Registrar's Division)

Title of the publication (book, journal, periodical, magazine)
Author(s) of the publication (editor(s), compiler(s), etc.);
Title of the specific chapter, section or article intended to be copied;
Author(s) of the specific chapter, section or article intended to be copied;
Author(s) of the specific chapter, section or article intended to be copied;
ISBN (in the case of a book) or ISSN (in the case of a journal) number of the publication;
Number of pages (as printed) intended to be copied;
Number of copies to be made of the section intended to be copied; and
Number of pages in the entire publication.

Dalro's Transactional Royalty Rate for reprographic reproduction in public higher and further education institutions is set at R0,36 (VAT exclusive) per copy per page as at 1 April 2006.


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Practical copyright tips

For the purpose of research or private study, or for personal or private use Section 12 (1) of the Act allows the making of a single copy of a reasonable portion of a work, consistent with fair dealing.

It is generally accepted that the copying of the whole or a major portion of the work in question is not reasonable and not compatible with fair dealing.

The user may not make the copy available to others.

Copyright shall also not be infringed for the purposes of critical review or reporting of current events in a newspaper, film or broadcast.

The original text may be viewed at Rhodes University.

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