What is copyright?
Copyright is a set of exclusive legal rights given to the author or creator of an original work – that includes the right to copy, distribute, adapt, perform and display the work in public. The work itself does not necessarily have to be unique. The owner of the copyright to the material has the right to copy, print, and distribute their work. Anyone else who wants to reuse the work in this way has to obtain permission from the owner. Copyright law is automatically granted to an author or creator of a work as soon as the work is created. Although the author or creator of a work does not have to register the work, by registering it they make the copyright more visible. Copyright also extends to unpublished work. If work is created by an employee, then the employer is the copyright holder.
An idea is not protected by copyright. It is the use of that idea (such as a novel or song) that is protected. For a work to be protected by copyright, it has to be in tangible form such as a book, e-book, software, music disc, painting, etc. Copyright does not protect names, titles, facts, ideas, discoveries, systems, common words, phrases or methods of operation. It may, however, protect the way these things are expressed, provided they meet the necessary criteria for copyright registration.
What can be copyrighted?
The following are some examples of works that can be copyrighted:
- literary works, including books, poems, theses, publications, handbooks and manuals
- motion pictures, TV series and dramatic works, including any accompanying music.
- pantomimes and choreographic works
- computer software and animations
- computer software - graphical user interfaces
- songs, song lyrics, sound recordings, and music
- photographs, graphics, images, pictures
- web pages
- works of art including paintings, sculptures, architecture, and computer graphics
- educational materials including texts and tests
- program signals
- broadcasts (radio, television, etc.)
How is copyright different from a patent or trademark?
Copyright protects the original works of an author or creator, whereas a patent protects inventions or discoveries, e.g. new technologies. A trademark protects words, phrases, symbols, or designs that identify the source of the goods or services of one party and distinguishes them from those of others, e.g. McDonalds, Edgars or Louis Vuitton.
Exemptions to using copyright material
The following materials are exemptions to using copyrighted material:
- making temporary copies - internet browsing or sending material by fax
- library privilege - copying on behalf of customers, but not artistic works like music, movies, or TV series
- recording judicial proceedings
- abstracts, but not from an abstracting bulletin, as this is a database with its own associated rights
- incidental inclusions where something is unintentionally included, such as a poster in a film
- reading in public with due acknowledgement of author/rights-owner
- advertising in sales catalogues
- off-air recording from television or radio (time-shifting) for private and domestic use so that it can be viewed or listened to at a more convenient time
- representations of works on public display e.g. a photograph of a statue
- helping physically disabled people - the exception covers you if you are visually impaired, blind or partially sighted or have a physical disability such as arthritis, which means that you cannot hold a book, focus or move your eyes. It allows you to make a copy of lawfully obtained copyright work if you make it into a format that helps you read the material.
- teaching in educational institutions
- playing sound recordings for:
- a non-profit club, society or other charitable organisation
- education or social welfare
- sound recordings in a public place where the public have not paid for admission and the playing forms part of the activities of a non-profit organisation
- demonstrating or repairing televisions and radio
How can a work be copyrighted?
Under the South African Copyright Act No. 98 of 1978, you do not need to go through a copyright registration process in South Africa. Once you have created the work the copyright registration process is complete. You can, however, obtain copyright registration in other countries such as in the USA. To be eligible as an author or creator of a work in South Africa, you need to be a South African citizen or resident. As an alternative, you must be a resident of any of the participating countries of the Berne Convention. All countries that have signed the Berne Convention are required to automatically protect the copyright of works created in other Berne Convention countries. Most countries (162 of the approximately 190 countries in the world) are signed up to the Berne Convention.
The Copyright Act does not prescribe any formalities for copyright protection and the right becomes enforceable on the date of the work’s publication. It is, however, advisable to put your name and the date of publication together with your claim:
“Copyright © (Year) Author's name
All rights reserved”
At a university all staff and students’ applicable work that was published in the course of their work or studies must carry the following copyright identification:
“Copyright © (Year) University of Cape Town
All rights reserved”
The (Year) represents the year in which the work was first published. According to the Bern Convention of 1886, all work that was first published in South Africa will also be protected internationally.
Books, plays and photographs
Adding a copyright notice can easily be done on written works such as books, scripts and essays, but can also be put onto photographs as a watermark. There are several free tools which you can use to watermark your pictures. They are available either for download or online. If you have Microsoft Publisher, you can also use that. All you need to do is open the photograph and click Insert. Select WordArt and add the shape you want to use, typing in the text you want. Then simply drag the watermark to the desired position on the photo.
There is also a useful sleuth tool that allows you to check whether any of your images are being used online without your permission.
All you need to do to ensure that your music is copyrighted is to capture it in a fixed format such as a CD or audio file, or to write down the melody and lyrics on paper.
As soon as the work is captured in a fixed format it is copyrighted.
Videos are the exception where copyright registration is concerned. If you have made a video that you wish to use for commercial purposes, you have to register it with the Companies and Intellectual Property Commission.
If I register my work, and then change the work into another format, is my copyright changed or altered?
No, the term of protection of a work is not affected by the fact that you have copied the work to another medium.
How far into creation is my work protected?
Your work will be protected as soon as it's created in material form, or can be used with the help of a machine or electronic device. Note: Ideas cannot be copyrighted.
What are my rights as a copyright holder?
As the copyright holder of your work, you may:
- reproduce the copyrighted work in copies,
- make derivative works based on your original work,
- distribute copies to the public by sale, rental, lease, or lending,
- perform the copyrighted work publicly, and
- display the copyrighted work publicly.
If you don’t want to employ the stringent restrictions that a full copyright implies, you can choose to license it as a Creative Commons work. All that you need to do is download the appropriate symbol from the Creative Commons website and place it on your work, or state somewhere on the work what the exact licensing terms are.
What can’t be copyrighted?
There are some things you can’t copyright, for example:
- Ideas - until your idea is captured in a fixed format, it is just an idea.
- Commonly known information – things like calendars, height and weight charts and telephone directories.
- Choreographic works – these are not subject to copyright protection unless they have been recorded.
- Speeches - these are not copyright protected unless they are transcribed or recorded.
- Names (of people or businesses), titles (of works, songs, books), short phrases, or expressions (such as advertising slogans). If they pertain specifically to your business, however, they can be trademarked.
- Recipes (unless they are compiled in a cookbook), formulas, compounds and prescriptions,
- Fashion, such as the design of a garment, cannot be copyrighted, but it is possible to copyright a specific fabric pattern.
How long does copyright last?
In South Africa the term of copyright is 50 years from the end of the year in which the work was first made or in which the author dies or is presumed to have died. Only once the copyright expires does the work fall into the public domain.
What is the public domain?
The public domain refers to works that are either ineligible for copyright protection or has an expired copyright on it. It is the total absence of copyright protection for a piece of work that is not owned or controlled by anyone. The term indicates that work is "public property" and available for anyone to use for any purpose. If the work is within the public domain there is no ownership rights associated with it. It may be said that everyone and no one owns the work. Therefore, anyone may reproduce the work, distribute it, adapt it, etc.
Works become part of the public domain when:
- the original author or creator places their work in a public domain,
- the copyright expires and the owner does not renew the copyright for their work,
- the work is no longer owned by the original author,
- no law exists that establishes proprietary rights to the author or creator, or they are specifically excluded from existing laws,
- they were created before copyright laws were passed.
What are the legal copyright options available?
Creative Commons provides a safe, legal and free space where you can allow others to use, remix, alter, make copies of your creative works, or make use of media that is available for use and sharing, which adds value to copyright law. By awarding different types of copyright licenses to original works you can decide how this work can be shared, copied, changed, remixed or used commercially without losing ownership of the work. Creative commons assists individuals and large companies alike a standardised way to share and grant copyright.
There are six types of licences available from Creative Commons.
- Attribution allow others to use, share, alter and remix your work as long as they give credit to the creator.
- Share Alike allows you to share, change and remix your work, even for commercial purposes. As long as they credit the creator and license the changed work under the same license type.
- Attribution No Derivates license allows for sharing and distribution of works without changing or altering the work. Credit to the creator must be distributed along with the work. You can share the work commercially or non-commercially.
- Attribution Non Commercial license allows others to change, share and remix your original work but not use it for commercial purposes
- Attribution Non-Commercial Share Alike allows for sharing, changing and building upon the original work while crediting the creator. All new work must carry the same license and all derivates must be non-commercial.
- Attribution Non-Commercial No Derivatives is a restrictive.
Using and contributing to Creative Commons will ensure that there will always be a large repository of quality works in a variety of media available for legal use.
Fair Dealing is described in section 12(1) of the Copyright Act of 1978. Fair Dealing - also known as Fair Practice, allows you to copy someone's literary or musical work (not a musical recording though) without requiring the copyright owner's permission and without paying. You can copy as much of the work as is necessary for:
- personal and private use
- study and research
- criticism or review of that work or of another work
- reporting current events
- in a newspaper, journal, magazine.
- by means of broadcasting or in a cinematograph film.
Since South Africa has no law against how much of the work you can use, you must guard against depriving the copyright owner of an income, because that will be an infringement of copyright law. The Fair Dealing exception applies to musical works i.e. compositions and not music recordings. Under Fair Dealing, you cannot make multiple copies of a work.
The University of Cape Town has signed a Blanket Licence Agreement with DALRO (The Dramatic, Artistic and Literary Rights Organisation) which allows educational institutions to access academic materials on campus.
There is a philosophy or a pragmatic methodology called Open Source. Open Source allows for making source codes available. The reasoning behind Open Source is to allow for improved quality, lower costs and an end to piracy. You can use, change and share the source code without permission or paying royalties.
Open Source, Fair use and Creative Commons allow for central, easy access for communities to contribute, share and change creative works. By using these copyright options you get the added benefits of using standardised, good quality creative works where due is given to the creator; trust is build and piracy loses its power.
Can I get caught for illegally downloading from the internet?
Every month UCT gets a number of take-down notices from international watchdog bodies and when this happens, ICTS is asked to trace the user who has caused the infringement. That person will then be politely asked to stop, but if the behaviour continues, UCT must, by law, take action. In addition to any UCT disciplinary measures implemented, anyone committing copyright infringements may be liable to legal and civil prosecutions.
You may think that illegal downloading and file sharing is a part of campus life, but do you really want to take the chance and jeopardise your future by incurring debt or facing a jail sentence?
- Downloading large media files via the wireless network can also slow things down for everyone else in the area? Many of the complaints we receive about slow bandwidth are caused by people downloading and sharing large files, often material which may be in breach of copyright laws.
- Pirating television shows, movies, software and games is not only illegal, but potentially dangerous. Pirated files are often riddled with malware and viruses. One estimate claims that nearly 1 in 5 files downloaded from a torrent site contains malware. An infected computer could cause huge problems for you, such as data loss and software corruption.
What is the difference between copyright and intellectual property rights?
Intellectual property rights include copyright, as well as a wider range of rights such as trade-marks, patents, or performance and recording rights. Effectively copyright is a sub-set of intellectual property rights. However, in some instances the term copyright is sometimes confused or substituted with the term intellectual property rights. See the UCT Research Contract and Intellectual Property Services website for more information.