Registration of copyright in cinematograph films
Introduction
Registration of copyright in cinematograph films is provided for by the Registration of Copyright in Cinematograph Films Act No. 62 of 1977 'the Act'. For the full text of the latest version of the Act, please click here.
For specialised advice on matters not dealt with in this section, please contact us.
What is a cinematograph film?
The expression 'cinematograph film' has the meaning assigned to it in terms of the
Copyright Act, namely:-
'cinematograph film' means any fixation or storage by any means whatsoever on film or any other material of data, signals or a sequence of images capable, when used in conjunction with any mechanical, electronic or other device, of being seen as a moving picture and of reproduction, and includes the sounds embodied in a sound-track associated with the film, but shall not include a computer program.
It is not intended that the Act should replace the Copyright Act which will continue to regulate questions of general principle including the existence or otherwise of copyright. For more information relating to copyright in general please click here.
Purpose of registration
The purpose of the Act is purely to facilitate proof, firstly, that copyright subsists in a particular cinematograph film in South Africa, and, secondly, that a given person is the owner of the copyright in such film. These aspects will make it easier for copyright holders to bring infringement proceedings against pirates.
In the absence of registration of the cinematograph film, it is necessary for copyright owner in litigation matters, not only to prove ownership, but also to establish the subsistence of copyright.
Benefits of registration
The advantages of registration may be summarised as follows:-
- Registration, in terms of section 31 of the Act, is prima facie evidence of the validity of the original registration of that copyright (in civil as well as criminal proceedings). Thus, in a civil matter to restrain third party infringement, it will not be necessary for the copyright owner to prove the subsistence of copyright and the fact of his ownership. A certificate issued by the Registrar of Copyright will constitute prima facie evidence of these matters.
- In terms of section 32 of the Act, if the validity of the registration of copyright in a cinematograph film has been in issue and has been decided in favour of the owner of the copyright, the Court may certify to that effect. In any subsequent civil proceedings in which the validity of the registration of that copyright is in issue the copyright owner, on obtaining a final order in his favour, shall have his full costs, charges and expenses paid for by the defendant, unless in the subsequent proceedings the Court decides otherwise.
- In terms of section 20 of the Act, a person other than th owner of the copyright in a cinematograph film may be registered as a licensee thereof either with or without conditions or restrictions.
- It is possible for the registered owner of the copyright in a cinematograph film to assign it and by making application in the prescribed manner, the assignee may be recorded as the subsequent owner of the copyright on the official registers.
Who may apply
In terms of Section 6(1) of the Act, any person claiming to be the owner of the copyright in a cinematograph film by virtue of the provisions of the Copyright Act, and who is desirous of registering it, may apply to the Registrar in the prescribed manner for registration.
Some definitions
- 'Author' means the person by whom the arrangements for the making of the film
were made. - 'Date on which the cinematograph film was lawfully made available to the public' probably means the date on which an announcement was made that copies of the film are available to the public from a particular source.
- 'Publication' means the sale, letting on hire or offer for sale or hire of copies of the film; however, the performance of a film does not constitute publication.
Requirements for filing
The following basic information and material are required for purposes of preparing and lodging an application for registration of copyright in a cinematograph film, namely:
- The full name or names, nationality, trading style, legal status, and description of the applicant(s); if the applicant is a body corporate other than a South African company, the nature and country of incorporation;
- The street address where the applicant is a natural person, or the street address of the principal place of business where the applicant is a corporation;
- Documentary proof (if the applicant is not the author) of his entitlement to apply;
- Whether the film is in colour, or in black and white;
- Whether any marks, including trade marks, or any features are used with or to distinguish the cinematograph film;
- The category of the film (for further information on Categories, please click here);
- The language of the film (for further information on Translation of Languages, please click here);
- For more information on the particulars set out in the section entitled Statement of Case, please click here;
- The full names (and designation) of the person who will sign the sworn declaration certifying the Statement of Case;
- A Power of Attorney (Click here to download a draft General Power of Attorney)
It should be noted that the Registrar may also, in his discretion, call for a deposit in his office of a specimen or copy of the cinematograph film and he may refer to such deposit in the register if he deems fit. Furthermore, any other relevant supporting, duly authenticated documents, or copies thereof, should be provided.
Statement of case
In terms of regulation 9(1)(c) of the Regulations promulgated under the Act, the
application for registration must also be accompanied by a Statement of Case, which
shall contain the following particulars:-
- The name or names of the cinematograph film;
- The name, citizenship, and country or countries of domicile and residence of the author of the cinematograph film;
- The circumstances by virtue of which it is claimed that the person referred to in the second point above is the author of the cinematograph film. If it is claimed that the author is a body corporate, full details must be furnished of the persons who acted on behalf of the body corporate in undertaking the arrangements for the making of the cinematograph film and in particular the relationship of such persons to the body corporate;
- Dates on and place or places at which the cinematograph film was made;
- Whether the cinematograph film has lawfully been made available to the public and if so the date on which it was first so lawfully made available to the public;
- Whether the cinematograph film has been published and if so the place and date of first publication;
- A brief description of the story or subject matter of the cinematograph film (and in this regard regulation 10 which deals with the submission of an abstract, or summary, states that it shall be summarised from the information contained in the Statement of Case and the story line shall be in narrative form and shall not be more than 150 words);
- The full names of the director and producer of the cinematograph film;
- The full names of the principal players (if any) or of the narrator, if appropriate, in the cinematograph film;
- Any marks, including trade marks, used in relation to or on the cinematograph film, or any features of the cinematograph film, which serve to distinguish the cinematograph film from other cinematograph films.
Agent and signature of document
The application shall be dated and signed by the applicant or his duly authorised agent. If the application is made by a firm or partnership it may be signed in the name or for and on behalf of the firm or partnership by any one or more members thereof, but the full names of all the partners shall be furnished in the Declaration.
If the application is made by a body corporate, it may be signed by a director or by the secretary or other principal officer of such body corporate duly authorised by the Board of Directors thereof.
In terms of section 5(1) of the Act, the Registrar shall permit an agent to do on behalf of the person for whom he is an agent, any act in connection with the registration under this Act or any proceedings relating thereto: provided that no person other than a legal practitioner or patent agent shall be permitted so to act for gain or furnish advice in relation thereto.
Foreign registrations
Where the applicant has already registered the copyright in a cinematograph film in another country it will be of considerable assistance if a copy of the certificate of registration in such other country is furnished.
Translations of languages
Where an application contains a word or words not written in the Latin alphabet, it will be necessary to provide a sufficient transliteration and translation to the satisfaction of the Registrar of each of such word or words and every endorsement must be signed by the applicant (or his agent).
Any document in a language other than the English or another official language shall be accompanied by an exact translation thereof, certified to the satisfaction of the Registrar.
Various abbreviations are set out in Schedule 4 to the Regulations of the languages which must be noted on the application form.
Categories
For purposes of registrations, films are classified into different categories.
Where problems arise in connection with the selection of the correct category, we should be furnished with full details of the story line to enable us to determine the correct category, or categories, involved.
Procedure after filing
After the filing of an application, an official filing receipt is issued. Thereafter, the application undergoes examination at the hands of the Registrar of Copyright. All applications are examined by the Registrar in strict chronological sequence of filing.
Once the examination has been completed, the Registrar takes action on the application either accepting it absolutely or preliminarily refusing it, or indicating subject to what conditions it may be accepted. If there is a preliminary refusal, or conditional acceptance, opportunity is afforded the applicant to make representations to the Registrar to overcome whatever objections may be raised, or to deal with the application otherwise as the circumstances may dictate.
Once an application has been accepted, it must be advertised in the Patent Journal which is published monthly on the last Wednesday of every month. In the absence of objections by third parties within the opposition period, which is one month after the advertisement date, a certificate will be issued to complete the prosecution procedure.
Opposition
After an application has been accepted and advertised in the Patent Journal, any person who considers that he has valid grounds for objecting, may enter opposition there against within one month from the date of publication. The opposition term may be extended by the Registrar and usually is prolonged to allow time for negotiation between the parties.
The Registrar may at any time request the applicant and the opponent to arrange for viewing of any cinematograph film relevant to the proceedings.
Special searches
A preliminary search may be made at the Registrar's Office to ascertain whether the copyright in a given cinematograph film has been registered. In this regard the Registrar maintains an alphabetical index of the names of all the applicants for registration of copyright in cinematograph film and registered owners thereof, as well as an alphabetical index of the names of all the assignees of copyright in cinematograph film and registered licensees thereof.
Patent Journal
As stated previously, an application, once accepted, is advertised in the Patent Journal on the last Wednesday of every month.
All proprietors of copyright in cinematograph film are strongly recommended to subscribe to the Journal with a view to checking each month whether any application has been accepted which might conflict with the rights of the party concerned and against which such party may, therefore, wish to enter opposition.
Duration of registration
The registration of the copyright in a cinematograph film shall be for such a period of time as may be provided for the subsistence of the copyright by virtue of the provisions of the Copyright Act, namely 50 years from the end of the year in which the work is lawfully made available to the public or, failing such an event within fifty years from the making of the work, fifty years from the end of the year in which the work was made.
Important note
It is highly desirable that any change of name, address or ownership affecting a registration should be recorded in the registers as promptly as possible. This applies to assignments as penalty fines are attracted for late recordal.
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