What is Copyright?

Copyright is the right to exclude others from copying or making an

adaptation of ones copyrighted work. Works eligible for copyright
include, artistic, literary and musical works, cinematograph films, sound
recordings, broadcasts, programme-carrying signals, published editions,
and computer programmes.
Copyright in South Africa is governed by the Copyright Act 98 of 1978.
Ownership of copyright
Copyright is not registered in South Africa and subsists automatically
from creation of an eligible work. Copyright in the work will vest in the
author unless it is assigned in writing. Exceptions to the rule that
copyright in the work will vest in the author are:
Literary and artistic works made in the course of employment with a
newspaper, magazine, or similar periodical for purposes of publication
in the newspaper, magazine or similar periodical, copyright shall vest
with the employer.
Where a person commissions the taking of a photograph, painting or
drawing of a portrait, the making of a gravure, cinematograph film or
sound record, and pays for it in money or moneys worth the copyright
in the work will vest in the person commissioning the work.
Where the work is created by an employee in the course and scope of
his or her employment, copyright in the work will vest in the employer.
It is important to note that where works, not specified above, are made
under an agreement other than an employment or apprenticeship
agreement, copyright in the work will vest in the author unless it is
assigned in writing.

Reverse engineering
Section 15(3A) of the Copyright Act was introduced in 1983 and states
The copyright in an artistic work of which three-dimensional
reproductions were made available, whether inside or outside the
Republic, to the public by or with the consent of the copyright owner,
shall not be infringed if any person without the consent of the owner
makes or makes available to the public three-dimensional reproductions
or adaptations of the authorized reproductions, provided the authorized
reproductions primarily have a utilitarian purpose and are made by an
industrial process.
This so-called reverse engineering clause provides that so-called
authorized reproductions shall not be protected by copyright. For
example, where a spare part is made from an engineering drawing and
sold to the public a copy made of the spare part by measuring and
reproducing it will not infringe the copyright in the engineering drawing
from which the first authorized reproduction was made.
Exceptions to infringement of literary and musical works
The Copyright Act provides for general exceptions to the protection of
literary and musical works to allow for fair dealings with the works.
Copyright of a literary or musical work will not be infringed if the work
is used:
For the purposes of research or private study
Personal or private use of the person using the work

Copyright will also not be infringed if the literary or musical work is

used:
For the purposes of criticism or review of that work or of another
work
For the purpose of reporting current events
In a newspaper, magazine or similar periodical
By means of broadcasting or in a cinematography film
In this case the source must be mentioned, as well as the name of the
author if it appears on the work.
The copyright in a literary or musical work which is lawfully available to
the public will not be infringed by any quotation of the work, including
any quotation from articles in newspapers or periodicals that are in the
form of summaries of the work, provided that the quotation is
compatible with fair practice, that the extent thereof does not exceed
the extent justified by the purpose and that the source is mentioned, as
well as the name of the author if it appears on the work.
Intellectual property (such as patents, trademarks, copyright, trade
secrets and know-how) can be licenced to third parties. A license is a
means whereby a holder of rights in Intellectual Property (IP), the
licensor, can obtain remuneration by allowing another person, the
licensee, to use the IP rights.
There are various types of licences, for example:
SOLE LICENCE
A sole licence is where the proprietor of the intellectual property as well
as the sole licensee is authorised to enter the market.

EXCLUSIVE LICENCE
Only one licensee at the exclusion of the proprietor of the intellectual
property has the right to enter the marketplace.
CROSS-LICENCE
Proprietors may cross-licence different technologies or intellectual
property to each other.
Licenses could be limited to a territory, an industry (i.e. you could
license your building invention to home builders to use your invention
for building private homes only and then license another party to use
the invention for building commercial buildings), time periods, supply
channels or the like. Combinations of the above and other types of
licences are of course also possible.
A proprietor can derive remuneration from a licence in any of the
following ways or a combination thereof:
Once off licence fee/royalty
Periodical licence fee/royalty (e.g. annual, quarterly or monthly)
A running royalty based on sales/turnover etc.
We strongly recommend that formal licence agreements be entered into
to regulate the rights and obligations of the parties (Licensor and
Licensee). As indicated above, there are various licensing and royalty or
payment options to consider. There are various other important
considerations such as geographical limitations, minimum performance
clauses, the enforcement of IP right in case of infringements by third
parties, marking of products or services with official intellectual
property numbers, and the like.