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South Africa

Tue, 16/02/2010 - 14:00 — TobiasSchonwetter

Legal background

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention? YES
Except photographs (50 years instead of 25)		 s3(2) CA
Must a work be fixed in some material form before copyright attaches? YES
With the exception of broadcasts and programme-carrying signals.		 s2(2) CA
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power? LIMITED
Generally, compulsory licensing is not provided for; however the Copyright Tribunal is given the power to amend licence schemes. Further, s21 of the Competition Act 89 of 1998 arguably permits the Competition Tribunal to grant compulsory licenses in circumstances of anti-competitive behaviour. The Competition Tribunal may for instance negotiate agreements with any regulatory authority to co-ordinate and harmonise the exercise of jurisdiction over competition matters within the relevant industry or sector and to ensure the consistent application of the principles of the Competition Act. 		ss31, 32 CA, s21 Competition Act
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? YES
The Constitution of South Africa, incorporating the Bill of Rights is the highest law in the Republic. 		ch1 s2 Constitution
Does the compilation of a database of non-original material fall outside the scope of copyright? NO
Databases as such qualify as “literary works” under the Copyright Act. While they must therefore fulfill the requirement of “originality” for copyright protection, this requirement does not necessarily extend to the content of the database.		 ss1(xxix)(g), 2(1) CA
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? NO
Unclear. However, nothing in SA law specifically states that exceptions and limitations prevail over contracts.

Freedoms to access and use

By Home UsersIs there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria? NO
South African copyright law follows the "fair dealing" approach towards copyright exceptions and limitations.		 ss12 et seq. CA
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? LIMITED
Not specifically. But depending on the kind of work and the purpose of the use in question, time, space and format shifting may fall within the scope of one of the more general copyright exceptions and limitations such as fair dealing
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? LIMITED
Backup copies can be made of computer programs. Otherwise, reproductions by consumers may be permitted under the general copyright exceptions and limitations such as fair dealing for personal and private use. It must be noted, however, that copies of entire works seldom fulfill the requirements of these general e&l.		 ss19B(2), 12 CA
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? LIMITED
Not specifically.
Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy? NO
For EducationIs reproduction permitted for the purposes of research or study? YES
The fair dealing exception for research and private study applies to literary and musical works, artistic works, broadcasts and published editions and requires (a) the mentioning of the source and (b) that the name of the author appears on the work.		 ss12(1), 15(4), 18, 19A CA
Does any such research and study provision cover distance and online education? LIMITED
Not specifically.
May translations of works be made for educational purposes? LIMITED
The SA Copyright Act specifically states that the teaching exception in s12(4) (see above) embraces (a) the right to use the work in another language than the original and (b) the right to translation.		 ss12(4), 12(11) CA
May works be reproduced and published by educational institutions in connection with systematic instructional activities? LIMITED
The Copyright Regulations allow the creation of copies for teachers as well as multiple copies for classroom use (not exceeding one copy per pupil per course). Yet, such reproductions are subject to certain requirements. Most importantly, copying is limited to “reasonable portions” of a work. It should also be noted that regulation 9 further restricts copying for teachers and classroom use by, inter alia, stating that copying may not be used as a substitute for the purchase of books and may not be repeated in respect of the same material by the same teacher from term to term.		 s13 CA, regs2, 7-9 CR
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? LIMITED
Unclear. South African courts will arguably follow the court decisions from other jurisdictions which generally declare surface linking less problematic than deep linking.
Are temporary or transient copies, incidental to a lawful use, excepted from copyright? NO
Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances? YES
An ISP is regarded as a “mere conduit” and on this basis the liability of an ISP is limited subject to certain conditions such as: the ISP must perform its functions in an automatic, technical manner without selection of the data. Notwithstanding such provision however, the ECT Act provides that a competent court may order a service provider to terminate or prevent unlawful activity in terms of any other law.		 s73 ECT
Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? YES
The ISP has no general obligation to monitor the date which it transmits or stores; or actively seek facts or circumstances indicating an unlawful activity. 		s78 ECT
Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? LIMITED
Several ISPs are, however, members of a regulatory body called ISPA. Under the Code of Conduct of ISPA, s2 ISPA members must respect the constitutional right of Internet users to personal privacy and privacy of communications.
By content creatorsCan copyright works be non-commercially remixed or mashed up into new works? LIMITED
Not specifically. But such behaviour may fall within the scope of other copyright exceptions and limitations, depending on the circumstances.
May computer software be reverse engineered for the purpose of creating interoperable software? NO
s19B CA
Is the incidental inclusion of a work in other material permitted? LIMITED
The copyright in an artistic work is not infringed by its incidental inclusion in a cinematograph film, television broadcast or transmission in a diffusion service.		 s15(1) CA
Is there are copyright exception for parody or satire? NO
Do creators who license their work retain the moral right of attribution? YES
In addition, creators even retain their moral rights if they transfer their copyright in a literary, musical or artistic work, a cinematograph film or a computer program. 		s20 CA
By the pressIs there a copyright exception for the news of the day? YES
Apart from the fair dealing exception for the reporting of current events contained in s12(1)(c) of the Copyright Act, s12(8) stipulates that no copyright subsists in “news of the day that are mere items of press information”. The fair dealing provision for the reporting of current events applies to literary, musical and artistic works, cinematograph films, sound recordings, broadcasts, published editions and computer programs.		 s12(1)(c) CA
May copyright material be reproduced for the purposes of review and criticism? YES
The fair dealing provision for criticism and review applies to literary, musical and artistic works, cinematograph films, sound recordings, broadcasts, published editions and computer programs.		 s12(1)(b) CA
May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? YES
But not for collections of speeches, speeches in judicial proceedings and/or other public speeches. 		s12(8) CA
May quotations be used for any purpose? YES
But only to the “extent justified by the purpose”.		 s12(4) CA
By LibrariesMay libraries copy works that cannot reasonably be obtained commercially? LIMITED
A library or archive depot may copy a published work for replacement purposes if an unused replacement cannot be obtained at a fair price. Also, an entire work or a substantial portion thereof may be copied for a user for the purposes of private study or personal or private use if an used copy of the copyright protected work cannot be obtained at a fair price. Certain restrictions for multiple copies are contained in s5 of the Copyright Regulations.		 s13 CA, regs3(e),(h), 5 CR
May libraries copy works for users for the purpose of research or study? LIMITED
An entire work or a substantial portion thereof may be copied for a user for the purposes of private study or personal or private use if an used copy of the copyright protected work cannot be obtained at a fair price. Certain restrictions for multiple copies are contained in s5 of the Copyright Regulations.		 s13 CA, regs3(h), 5 CR
Are libraries allowed to make preservation or archive copies of materials in their collections? LIMITED
Regulations 3(d) and 3(e) allow copying in facsimile form of unpublished and published works for preservation and replacement purposes.		 s13 CA, regs3(d), (e) CR
In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)? NO
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? NO
Not specifically.
In public affairsAre laws excluded from copyright? YES
s12(8) CA
Are other governmental works excluded from copyright? LIMITED
The Copyright Act stipulates in s12(8) that no copyright subsists in official texts of a legislative, administrative or legal nature, or in official translations of such texts, or in speeches of a political nature or in speeches delivered in the course of legal proceedings, or in news of the day that are mere items of press information. For all other material, copyright vests in the state and provision for such material is made in s5 of the Copyright Act. In this context the new IPR form Publicly Financed Research and Development Act of 2008 should also be considered.		 ss5, 12(8) CA
Is there a copyright exception for use of material in judicial proceedings? YES
s12(2) CA
Are the results of publicly funded research required to be published under an open access license? NO
The IPR from publicly financed research and development act of 2008 contains no such requirement. 		IPR from publicly financed research and development act of 2008

Freedoms to share and transfer

May copyright works be freely offered for commercial rental? LIMITED
Not sound recordings and computer programs		 ss9(b), 11B(h) CA
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? YES
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain? NO
Is parallel importation permitted? LIMITED
Parallel importation constitutes copyright infringement if the requirements of sec 23(2)(a) of the Copyright Act are met. Parallel importation is only permitted for the purpose of private and domestic use. In all other situations, courts in SA are required under the Act to hypothesise the making of the imported article in South Africa and determine whether such making would have constituted a copyright infringement. 		ss23, 27 CA
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy? YES
South Africa has adopted an official policy in 2007 entitled the Policy on Free and Open Source Software [FOSS] Use for South African Government “FOSS Policy” which provides that the South African government will implement FOSS unless proprietary software is demonstrated to be significantly superior. Further the South African government shall migrate current proprietary software to FOSS whenever comparable software exists. In addition new software developed for or by the South African government will be based on open standards, adherent to FOSS principles, and licensed using a FOSS licence where applicable. 		FOSS Policy
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy? YES
The FOSS Policy provides that the South African government will ensure all government content and content developed using government resources is made open content, unless analysis on specific content shows that proprietary licensing or confidentiality is substantially beneficial. Furthermore the FOSS policy states that the South African government shall encourage the use of open content and open standards in South Africa. 		FOSS Policy
Are there specifications or incentives in national law/policy for the use of open document formats? YES
The FOSS policy states that the South African government shall encourage the use of open content and open standards in South Africa. 		FOSS Policy

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? $1300 [(criminal sanctions:) ZAR 10,000 (first time infringer: ZAR 5,000) or up to 5 years imprisonment (first time infringer: 3 years) for each infringing article] s27 CA
What is the maximum penalty for copyright infringement for a corporation? $1300 [(criminal sanctions:) ZAR 10,000 (first time infringer: ZAR 5,000) or up to 5 years imprisonment (first time infringer: 3 years) for each infringing article] s27 CA
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge? YES
In general, only commercial uses carry criminal sanctions (as opposed to civil sanctions.		 s27 CA
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright? LIMITED
Unclear. Section 86(3) of the ECT Act criminalises production, selling, offer to sell, procuring for use, design, adaptation for use, distribution or possession of devices which are designed primarily to overcome data protection measures. It appears the underlying purpose, ie enabling uses permitted by copyright e&l, is irrelevant.		 s86(3) ECT
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright? LIMITED
Unclear. Section 86(4) of the ECT stipulates that a person who uses anti-circumvention devices “in order to unlawfully overcome” TPMs is guilty of an offence. It could be argued, however, that a person who uses anti-circumvention devices to merely make use of his rights under established copyright e&l does not utilise such devices to unlawfully overcome TPMs.		 s86(4) ECT
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material? NO
Are the operations of copyright collectives subject to public oversight? YES
The function of the Copyright Tribunal is to determine disputes arising between licensing bodies, or other persons from whom licences are required and persons requiring licences. In addition, the Collecting Society Regulations set out the conditions under which a collecting society may be established and may operate under the Copyright Act.		 ch3 CA, Collecting Society Regulations
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online? YES
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? LIMITED
Criminal sanctions are limited to cases of commercial counterfeiting but such counterfeiting does not necessarily need to be "large-scale".
Are damages for copyright infringement based on the loss sustained, rather than by a pre-established or statutory damages award? YES
Instead of damages, the plaintiff may ask for a reasonable royalty to be awarded.		 s24(1)-(1B) CA
Is there provision to penalise the wrongful allegation of copyright infringement? NO

Conclusions

The South African Copyright Act of 1978 makes little use of access-enabling copyrighti flexibilities for the benefit of consumers available under the relevant international copyright treaties and agreements, particularly the Berne Conventioni and TRIPs. Such flexibilities pertain to the duration of copyright protection, the scope of copyright protection and especially the utilisation of copyright exceptions and limitations. The current set of copyright exceptions and limitations appear vague and fragmentary and are, in many instances, outdated. The use of modern technologies, for example in distance education, remains largely unconsidered. Some legislative and policy advancements in South Africa of late have had an enabling and progressive tone. Yet, when applied in the context of the Copyright Act, these advancements fail to cohesively deal with the relevant subject. To illustrate, despite forays into electronic communications access in South Africa, the Electronic Communications and Transactions Act may serve to override copyright exceptions and limitations, including fair dealingi provisions contained in the Copyright Act, and may attach criminal liability for use of a work that is legitimated by the Copyright Act. Thus, it is concluded that the South African Copyright Act must be updated to keep pace with technological advancements and recent surrounding policy and legislative advancements related to access to knowledge. Recently-revised copyright laws in other countries, e.g., Australia, could provide a basis for a revision process in South Africa that enhances and clarifies access possibilities.

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