Copyright, Intellectual Property & Related Rights and Protection Policies in terms of the Copyright Act of 1978
The amended Copyright Act of 1978 is administered by the national Department of Trade & Industry (the DTI)
The Objectives of the Act are :
- to give exclusive rights to an intellectual creation
- to prohibit others to make copies or modifications to the intellectual creation in exchange for money or some other benefit
- primary benefit conferred by a property right is the use & enjoyment of the property right
- termed non-rivalrous & non-excludable referring to the quality of intellectual creations which allows many people to make use of the same goods simultaneously without diminishing the value of the creation or impairing another's use
This Act as a policy/measure is linked to the 2005 Convention because it encourages creativity, giving creators an incentive, exclusive control for a period of time, before the work becomes public domain. The copyright law of South Africa governs copyright, which is the right to control the use & distribution of artistic & creative works. It is embodied in the Copyright Act of 1978 and its various amendments, & administered by the Companies & Intellectual Property Commission in the department of Trade & Industry. The Copyright Act automatically protects works created by South Africans or in South Africa. It also permits the Minister of Trade & Industry to extend the same protection to works created in, or by residents of other countries; such protection has been extended to all Berne Convention countries.
The Department of Trade and Industry has set up the Companies & Intellectual Property Commission (CIPC) to administer Copyright and all Intellectual Property Law in South Africa, including :
Establishment of a Copyright Tribunal
There are special courts to hear disputes
South African Copyright Law defines TEN categories of works that are eligible for copyright, including designs patents, and trademarks :
- Literary works - including novels, poems, plays, film scripts, textbooks, articles, encyclopedias, reports, speeches, etc.
- Musical works - excluding words sung with the music
- Artistic works - including paintings, sculptures, drawings, photographs, architectural works, works of craftsmanship, etc.
- Cinematograph films - in any medium, including film, tape or digital data
- Sound recordings - in any medium, but excluding film soundtracks
- Broadcasts - signals transmitted by radio waves and intended for public reception
- Programme-carrying signals - signals representing audio and/or video and transmitted via satellite
- Published editions - particular typographical arrangements of literary or musical works
- Computer programs - instructions, in any medium, that direct the operation of a computer
- Performers Protection - Needle time rights
Challenges identified in the implementation of this measure:
Current SA Copyright Laws are not wholly aligned to International Conventions but promote protection of rights-holders.
Works that are not mentioned / not included in the Act/Law :
- Orphan Works : works where the rights holders cannot be located & works of which the status is unclear – they may or may not have entered the public domain
- Webcasts & Podcasts : the Act makes no specific provision for works that are communicated over the internet
- Traditional Knowledge : no mention of system in the SA Copyright Act, however the DTI has drafted an Intellectual Property Amendment Bill, intended to introduce exclusive rights over traditional knowledge
- Parallel Imports : Parallel imports can make products cheaper by increasing competition in the market e.g. medication like anti-HIV drugs. They can also enhance access to knowledge & information, & education.
Challenges faced by the creative industry are:
- non-payment of royalties;
- lack of formalisation of the creative industry which exposes the already vulnerable industry to abuse;
- piracy and lack of education and awareness on IP and the rights of artists;
- Copyright is still seen by many as a technical area of law, of marginal relevance to most people
- Participation from civil society and Small and Medium Enterprises (SMEs) in policy-making and advocacy has been sporadic at best, and largely uncoordinated.
- Too protective towards rights-holders who continue to enjoy unlimited rights
- No regulation of collecting societies
- Act not in line with economic & other developing technological policy & regulatory framework