Requirements for the subsistence of copyright

Copyright in terms of the Act exists de facto and no registration is required. In respect of cinematograph films optional registration is provided for. For further information on Registration of Copyright in Cinematograph Films, please click here.

Copyright is automatically conferred on a work eligible for copyright at the time when it is created, provided certain requirements are complied with:

• In terms of section 3 of the Act, copyright is conferred on a work, eligible for copyright, where the author (or in the case of joint authorship, one of the authors) is, at the time the work or a substantial part thereof is made, a qualified person.
• A ‘qualified person’ is, in the case of an individual, a person who is a South African citizen or a citizen of a Berne Convention country, or who is domiciled or resident in the Republic or a convention country, or in the case of a juristic person, a body incorporated under the laws of the Republic of South Africa or a convention country (section 3(1) read with section 37.) For further information with regard to the application of these provisions of the Act to Berne Convention countries, please click here.
• A work of architecture erected in the Republic, or any other artistic work incorporated in a building or any other permanent structure in the Republic, is eligible for copyright whether or not the author was a qualified person.
• In terms of section 4 of the Act, copyright is also conferred on a work eligible for copyright, which is first published in South Africa or a Berne Convention country, or in the case of broadcasts, cinematograph films and computer programs, made in South Africa or a Berne Convention country, even though the author is not a qualified person (see paragraph 5).
• The term ‘publish’ in this context is defined to mean generally the issuance of copies of the work to the public with the consent of the owner of the copyright (see paragraph 6 below) in sufficient quantities to meet the reasonable needs of the public, having regard to the nature of the work. In the case of cinematograph films and sound recordings, the sale, letting or hiring of copies also constitutes publication in this context (section 1(5)(a) and (b)).
• In terms of section 5, copyright is conferred on every work which is eligible for copyright and which is made by or under the direction or control of the state or an international organisation as prescribed. Copyright conferred in terms of this section vests in the state or in the relevant international organisation (section 21(2)).