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:

Reproduce the work
Create derivative works based on the original work
Distribute copies of the work
To perform the work, or
To display the work in public.

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

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 purposes 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 also 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.” The use must indeed be “by way of illustration” only, and not as the sole or primary source of instruction.
Multiple copies for class-room 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” “Cumulative effect” is defined as: “not more than one short poem, article, story or essay or two excerpts copied from the same author or more than three short poems, articles, stories or essays from the same collective work or periodical volume” and “no more than 9 instances of such multiple copying for one course of instruction to a particular class during any one term” may be made without copyright permission. This can be interpreted as no more than 27 short poems, articles, stories or essays (but no more than 3 from the same periodical volume) taken from 9 different works, per term, per course.
However, the following shall be prohibited:
- Copies may not be used to create or replace or substitute anthologies, compilations or collective works;
- No copies may be made of or from works intended to be ephemeral, including workbooks, exercises, standardised tests and test booklets and answer sheets and similar ephemeral material (note: this does not include material issued by this Institution for teaching but would exclude the use of another Institution’s material by our staff);
- Copying may not:
  - be used as a substitute for the purchase of books, publishers’ reprints, or periodicals; and
  - be repeated in respect of the same material by the same teacher from term to term.

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 Website. 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.

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 licensee (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 (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.

HOW DO I GET COPYRIGHT PROTECTION FOR MY OWN 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.

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, which include photographs, works of architecture, 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 archive 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, 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 interlibrary loan.

WHAT ABOUT REPRODUCTION OF ELECTRONIC MATERIAL AND THE INTERNET?

The use of electronic resources are regulated by licence agreements which may vary with regard to the permitted use - typically it covers use for research, teaching and studying purposes. Consult your institutional e-resources person for details. With regard to the internet: free access does not imply that there are no copyright restrictions since protection extends to electronic format. Most websites contain copyright statements about permitted use of content.

WHAT CAN I DO IF A TEXT HAS BEEN ORDERED FOR A CLASS BUT IS LATE IN ARRIVING AT THE BOOKSTORE?

You may be able to obtain permission from the copyright owner or publisher to photocopy only a portion of the text whilst you are waiting for the book to arrive. The Publishing Liaison Office at CHEC (Cape Higher Education Consortium) can assist with this (details below).

HOW DO I OBTAIN COPYRIGHT PERMISSION TO USE SOMEBODY ELSE’S WORK?

Any member of staff who wishes to provide students with course notes or readers which include not only original material but also copyrighted material should obtain permission for such reproduction.

UCT and Stellenbosch University entered into blanket licence agreements with DALRO and although the licence authorizes reproduction in advance with retrospective reporting, for functional purposes, clearance before copyright is required through the CHEC on-line system.

CPUT and UWC obtain copyright clearance through CHEC’s on-line system by way of transactional licensing (a one-off licence which authorizes specific reproduction of a specific item for a specific purpose, e.g. the making of 100 copies of an article from a particular journal for a particular course).

As mentioned above, copyright clearances are made through the Publishing Liaison Office at CHEC. This office operates a copyright clearance centre on behalf of the four tertiary institutions in the Western Cape, providing services relating to copyright clearance and related matters.

If you have any copyright queries please contact:

Mrs Lemeez Hendricks
(021) 035 0291
lemeez@chec.ac.za.