The Copyright Act does not require registration in order to acquire copyright in respect of a particular work. Instead, copyright subsists automatically once a work has been completed, provided that certain requirements are met.
Firstly, the work must be original. What this means is that the work does not have to be inventive as such but must have been created as a result of the author’s own original labour and skill.
Secondly, it must be reduced to writing or recorded in some material form i.e., it must have a tangible existence as there is no copyright in ideas or concepts.
Additional requirements are that the author must have been a qualified person at the time the work or a substantial part thereof was created. In other words, if the author is a natural person, he/she must either be a South African citizen, domiciled in South Africa or a citizen of a Berne Convention country. In the case of a juristic person, it must be a body incorporated under the laws of South Africa or those of a Berne Convention country. If the author is not a qualified person, the work must first be published in or made in South Africa or in a Berne Convention country.
Furthermore, the Copyright Act only confers copyright in respect of certain specified categories of works. Such works include literary works, musical works, artistic works, cinematograph films, sound recordings, broadcasts, program-carrying signals, published editions, and computer programs. Consequently, and in addition to meeting all the above requirements, the particular work must also fall within one of the aforementioned categories.
In terms of the Act, the general rule is that the author is the owner of copyright of the work that he/she has created. However, there are certain exceptions, as set out hereunder.
Where a literary or artistic work is made by an author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and is made for the purpose of publication in a newspaper, magazine or similar
periodical, the proprietor will be the owner of the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical or to reproduction of the work for the purpose of its being published therein, but in all other respects the author shall be the owner of any copyright subsisting in the work.
Where a person commissions the taking of a photograph, the painting or drawing of a portrait, the making of a gravure, the making of a cinematograph film or the making of a sound recording and pays or agrees to pay for it in money or money’s worth, and the work is made in accordance with that commission, that person shall, be the owner of any copyright subsisting therein.
Where a work is made in the course of an author’s employment by another person under a contract of service or apprenticeship, that other person i.e., the employer will be the owner of any copyright subsisting in the work.
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