Copyright Amendment Act 125 of 1992
REPUBLI.EK. VAN SUID-AFRIKA
STAATSKOERANT
. .
GOVERNMENT GAZETTE
FOR THE REPUBLIC OF SOUTH AFRICA
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KAAPSTAD, 10JULIE 1992
CAPE TOWN, 10 JULY 1992 No. 14129
KANTOOR VAN DIE STAATSPRESIDENT STATE PRESIDENT'S OFFICE
No. 1913. 10 Julie 1992 No. 1913. lOJuly 1992
Hierby word bekend gemaak dat die Staatspresident sy It is hereby notified that the State President has assented to goedkeuring geheg het aan die onderstaande Wet wat hierby the following Act which is hereby published for general ter algemene inligting gepubliseer word:- information:-
No. 125 van 1992: Wysigingswet op Outeursreg, 1992. No. 125 of 1992: Copyright Amendment Act, 1992.
Please note that most Acts are published in English and another South African official language. Currently we only have capacity to publish the English versions. This means that this document will only contain even numbered pages as the other language is
printed on uneven numbered pages.
GOVERNMENT GAZETIE, 10 JULY 1992 No. 14129 3
COPYRIGHT AMENDMENT ACT, 1992 Act No. 125, 1992
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
ACT To amend the Copyright Act, 1978, so as to amend, delete or insert certain definitions; to make provision that computer programs be eligible for copyright as a separate category of work; to further provide for the conditions to be met before works become eligible for copyright; to further regulate copyright in broadcasts and programme-carrying signals; to further provide for the protection of the moral rights of the author of a work; to further provide for dealing with the infringement of copyright and for the remedies available upon such infringement; to further provide for presumptions in proceedings relating to infringement of copyright; to further prescribe penalties for infringements of copyright; to further provide for the seizure of imported infringing copies; to further regulate the procedure relating to applications to the Copyright Tribunal; to extend the powers of the Copyright Tribunal regarding the granting of licences; and to make provision for appeals against decisions of the Copyright Tribunal; and to provide for matters connected therewith.
(Afrikaans text signed by the State President.) (Assented to 2 July 1992.)
BE IT ENACfED by the State President and the Parliament of the Republic of South Africa, as follows:-
Amendment of section 1 of Act 98 of 1978, as amended by section 1 of Act 56 of 1980, section 1 of Act 66 of 1983, section 1 of Act 52 of 1984 and section 1 of Act
5 13 of 1988
1. Section 1 of the Copyright Act, 1978 {hereinafter referred to as the principal Act), is hereby amended-
(a) by the addition to the definition of "adaptation" of the following paragraph:
10 " d a com uter ro ram includes- (i) a version of the program in a programming language,
· code or notation different from that of the program; or (ii) a fixation of the program in or on a medium different
from the medium of fixation of the program;"; 15 (b) by the substitution for paragraph (c) of the definition of "artistic work"
of the following paragraph:
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COPYRIGHT AMENDMENT ACf, 1992 Act No. 125, 1992
" (c) works of [artistic] craftmanship [or works of craftmanship of a technical nature] not falling within either paragraph (a) or (b);";
(c) by the substitution for paragraphs (c), (e) and (f) of the definition of 5 "author" of the following paragraphs, respectively:
"(c) a sound recording, means the person by whom the arrange- ments for the [first fixing of the sounds of a performance or of other sounds] making of the sound recording were made;
· (e) a broadcast, means the [Corporation] first broadcaster;. 10 (f) a programme-carrying signal, means the [Corporation] first
person emitting the signal to a satellite;"; (d) by the addition of the following paragraphs to the definition of
"author": a litera dramatic musical or artistic work or com uter
15 program which is computer-generated, means the person by whom the arrangements necessary for the creation of the work were undertaken;
(i) a computer program, the person who exercised control over the making of the computer program;";
20 (e) by the substitution for the definition of "broadcast" of the following definition:
" 'broadcast', when used as a noun, means a broadcasting service as defined in section 1 of the Broadcasting Act, 1976 (Act No. 73 of 1976), and includes the emitting of programme-carrying signals
25 to a satellite, and [a reference to 'broadcast'], when used as a [noun] verb, shall be construed accordingly;";
(f) by the substitution for the definition of "cinematograph film" of the following definition:
" 'cinematograph film' means the [first] fixation by any means 30 whatsoever on film or any other material of a sequence of images
capable, when used in conjunction with any mechanical, electronic or other device, of being seen as a moving picture and of reproduction and includes the sounds embodied in a sound-track associated with the film, but shall not include a computer
35 program;"; (g) by the insertion after the definition of "cinematograph film" of the
following definition: " 'computer program' means a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a
40 computer, directs its operation to bring about a result;"; (h) by the substitution for the definition of "copy" of the following
definition: " 'copy' means a reproduction [in written form or in the form of a recording or a cinematograph film or in any other material form]
45 of a work, and, in the case of a literary, musical or artistic work, a cinematograph film or a computer program, also an adaptation thereof: Provided that an object shall not be taken to be a copy of a work of architecture unless the object is a building or a model of a building;";
SO (i) by the substitution for the definition of "distribution" of the following definition:
" 'distribution', in relation to [(a) a sound recording, means any act by which records embodying
the sound recording are offered, directly or indirectly, to the 55 general public or any section thereof;
(b)] ·!! programme-carrying [signals] signal, means any operation by which a distributor transmits !! derived [signals] signal to the general public or any section thereof;";
(j) by the substitution for the definition of "distributor" of the following 60 definition:
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COPYRIGHT AMENDMENT ACT, 1992 Act No. 125, 1992
" 'distributor', in relation to .!! programme-carrying [signals] sig- nal, means the person who decides that the transmission of the derived signal to the general public or any section thereof shall take place;";
5 (k) by the substitution for the definition of "emitted signal" of the following definition:
" 'emitted signal' means a [programme-carrying] signal which goes to [or passes through] a satellite;";
(l) by the substitution for the definition of "infringing copy" of the '10 following definition:
" 'infringing copy', in relation to- (a) a literary, musical or artistic work or a published edition,
means a [reproduction] £QQY thereof; (b) a sound recording, [or a substantial part thereot] means a
15 record embodying that recording; (c) a cinematograph film, means a copy of the film or a still
photograph made therefrom; [and] (d) a broadcast, means a cinematograph film of it or a copy of a
cinematograph film of it or a sound recording of it or a record 20 embodying a sound recording of it or a still photograph [or an
individual image or a copy of a still photograph] made therefrom; and
frl. a computer program, means a copy of such computer pro- gram,
25 being in any such case an article the making of which constituted an infringement of the copyright in the work, recording, cinemat- ograph film, [or] broadcast or computer program or, in the case of an imported article, would have constituted an infringement of that copyright if the article had been made in the Republic;";
30 (m) by the deletion of the definition of "licence"; (n) by the substitution for the definition of "licence scheme" of the
following definition: " 'licence scheme', for the purposes of Chapter 3, in relation to licences of any description, means a scheme prepared by one or
35 more licensing bodies, setting out the classes of cases in which they are willing, or the person on whose behalf they act is willing, to grant licences of that description, and the charges, if any, and terms and conditions subject to which licences may be granted in those classes of cases, and includes anything in the nature of such
40 a scheme, whether described as a scheme or as a tariff or by any other name;";
(a) by the deletion of the definition of "licensing body"; (p) by the substitution for the definition of "literary work" of the following
definition: 45 " 'literary work' includes, irrespective of literary quality and in
whatever mode or form expressed- ( a) novels, stories and poetical works; (b) dramatic works, stage directions, cinematograph film scenar-
ios and broadcasting scripts; 50 (c) textbooks, treatises, histories, biographies, essays and arti-
cles; (d) encyclopaedias and dictionaries; (e) letters, reports and memoranda; (f) lectures, [addresses] speeches and sermons; and
55 (g) [written] tables and compilations, but shall not include a computer program;".
(q) by the insertion after the definition of "Minister" of the following definition:
" 'musical work' means a work consisting of music, exclusive of 60 any words or action intended to be sung, spoken or performed
with the music;"; (r) by the substitution for the definition of "performance" of the following
definition:
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" 'performance' includes any mode of visual or acoustic presenta- tion of a work, including any such presentation by the operation of a loudspeaker, a radio, television or diffusion receiver or by the exhibition of a cinematograph film or by the use of a record or by any other means, and in relation to lectures, [addresses] speeches and sermons, includes delivery thereof; and references to 'per- form' in relation to a work [or an adaptation of a work] shall be construed accordingly: Provided that 'performance' shall not include broadcasting or rebroadcasting or transmitting a work in a diffusion service;";
(s) by the substitution for the definition of "plate" of the following definition:
" 'plate' includes any stereotype, stone, block, mould, matrix, transfer, negative [or other similar appliance], record, disc, stor- age medium or any version of a work of whatsoever nature used to make copies.";
(t) by the substitution for the definition of "programme" of the following definition:
" 'programme', in relation to _!! programme-carrying [signals] signal, means a body of live or recorded material consisting of images or sounds or both, embodied in .!! [signals] signal [emitted for the purpose of ultimate distribution];";
(u) by the insertion after the definition of "programme" of the following definition:
" 'programme-carrying signal' means a signal embodying a pro- gram which is emitted and passes through a satellite;";
(v) by the substitution for the definition of "sound recording" of the following definition:
" 'sound recording' means [the direct exclusively aural] any fixa- tion of sounds [of a performance or of other sounds] capable of being reproduced, but does not include a sound-track associated with a cinematograph film;";
(w) by the insertion of the following definition after the definition of "this Act":
" 'work' a work contemplated in section 2;"; and (x) by the addition of the following subsections:
" 4 Notwithstandin the rovisions of ara ra h i of the definition of "author" in subsection (1), the author of a computer program made before the date of commencement of the Copyright Amendment Act, 1992, shall be deemed to be the person who first made or created the program, but if such computer program is original and has been published by a qualified person, such person shall be presumed to be the owner of the copyright subsisting in the computer program concerned, unless the contrary is proved.
(5) For the purposes of this Act the following provisions shall apply in connection with the publication of a work: (a) Subject to paragraph (e), a work shall be deemed to have
been published if copies of such work have been issued to the public with the consent of the owner of the copyright in the work in sufficient quantities to reasonably meet the needs of the public, having regard to the nature of the work.
(b) Publication of a cinematograph film or sound recording is the sale, letting, hire or offer for sale or hire, of copies thereof.
(c) A publication shall not be treated as being other than the first publication by reason only of an earlier publication elsewhere within a period of 30 days.
(d) Publication shall not include- (i) a performance of a musical or dramatic work, cinemato-
graph film or sound recording; (ii) a public delivery of a literary work; (iii) a transmission in a diffusion service;
,, I
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(iv) a broadcasting of a work; (v) an exhibition of a work of art; (vi) a construction of a work of architecture.
(e) For the purposes of sections 6, 7 and ll(b), a work shall be deemed to be published if copies thereof have been issued to the public.".
Amendment of section 2 of Act 98 of 1978, as amended by section 2 of Act 56 of 1980 and section 2 of Act 52 of 1984
2. Section 2 of the principal Act is hereby amended- 10 (a) by the substitution for paragraph (d) of subsection (1) of the following
paragraph: "(d) cinematograph films [to which are assimilated works ex-
pressed by a process analogous to cinematography];"; (b) by the addition to the said subsection of the following paragraph:
15 "Ill. computer programs."; (c) by the substitution for subsection (2) of the following subsection:
"(2) A [literary, musical or artistic] work, except a broadcast or programme-carrying signal, shall not be eligible for copyright unless the work has been written down, recorded or otherwise
20 reduced to material form."; and (d) by the insertion after subsection (2) of the following subsection:
" 2A A broadcast or a ro ramme-car in si nal shall not be eligible for copyright until, in the case of a broadcast, it has been broadcast and, in the case of a programme-carrying signal, it has
25 been transmitted by a satellite.".
Amendment of section 3 of Act 98 of 1978, as amended by section 3 of Act 52 of 1984
3. Section 3 of the principal Act is hereby amended- ( a) by the substitution for subsection (1) of the following subsection:
30 "(1) Copyright shall be conferred by this section on every work, eligible for copyright, of which the author or, in the case of a work of joint authorship, any one of the authors is at the time the work or a substantial part thereof is made, a qualified person, that is- ( a) in the case of an individual, a person who is a South African
35 citizen or is domiciled or resident in the Republic; or (b) in the case of a juristic person, a body incorporated under the
laws of the Republic: Provided that a work of architecture erected in the Republic or any other artistic work incorporated in a building or any other
40 permanent structure [located] in the Republic, shall be eligible for copyright, whether or not the author was a qualified person.";
(b) by the substitution for paragraph (b) of subsection (2) of the following paragraph:
"(b) cinematograph films [and], photographs and computer pro- 45 grams, fifty years from the end of the year in which the work
is [lawfully] made available to the public with the consent of the owner of the copyright or, failing such an event within fifty years from the making of the work, fifty years from the end of the year in which the work is made;"; and
50 (c) by the substitution for paragraph (a) of subsection (3) of the following paragraph: ·
"(a) In the case of anonymous or pseudonymous [literary, musical or artistic] works, the copyright therein shall subsist for fifty years from the end of the year in which the work is [lawfully]
55 made available to the public with the consent of the owner of the copyright or from the end of the year in which it is reasonable to presume that the author died, whichever term is the shorter.".
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COPYRIGHT AMENDMENT ACT, 1992 Act No. 125, 1992
Amendment of section 4 of Act 98 of 1978, as amended by section 4 of Act 52 of 1984
4. Section 4 of the principal Act is hereby amended by the insertion in subsection (1) after paragraph (e) of the following paragraph:
5 "W being a computer program, is first published or made in the Republic,".
Amendment of section 5 of Act 98 of 1978, as amended by section 5 of Act 52 of 1984
5. Section 5 of the principal Act is hereby amended by the substitution for 10 subsection (4) of the following subsection:
"(4) Copyright conferred by this section on a cinematograph film, photograph, sound recording, broadcast, programme-carrying signal, [or] published edition or computer program shall be subject to the same term of copyright provided for in section 3 for a similar work.".
15 Amendment of section 6 of Act 98 of 1978, as amended by section 3 of Act 56 of 1980
6. Section 6 of the principal Act is hereby amended by the substitution for paragraph (b) of the following paragraph:
"(b) publishing the work if it was hitherto unpublished;".
20 Amendment of section 7 of Act 98 of 1978, as amended by section 4 of Act 56 of 1980
7. Section 7 of the principal Act is hereby amended by the substitution for paragraph (b) of the following paragraph:
"(b) publishing the work if it was hitherto unpublished;".
25 Amendment of section 8 of Act 98 of 1978, as amended by section 5 of Act 56 of 1980, section 6 of Act 54 of 1984 and section 1 of Act 61 of 1989
8. Section 8 of the principal Act is hereby amended- ( a) by the substitution for paragraph (a) of subsection (1) of the following
paragraph: · 30 "(a) Reproducing the film in any manner or form, including
making a still photograph therefrom;"; (b) by the substitution for paragraph (g) of subsection (1) of the following
paragraph: "(g) letting, or offering or exposing for hire by way of trade,
35 directly or indirectly, a [reproduction or an adaptation]~ of the film."; and
(c) by the deletion of subsection (2).
Amendment of section 10 of Act 98 of 1978, as amended by section 7 of Act 56 of 1980
40 9. Section 10 of the principal Act is hereby amended by the substitution for paragraph (a) of the following paragraph:
"(a) Reproducing, directly or indirectly, the broadcast in any manner or form, including, in the case of a television broadcast, making a still photograph [of an individual image] therefrom;".
45 Insertion of section UB in Act 98 of 1978
10. The following section is hereby inserted in the principal Act after section 11A:
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"Nature of copyright in computer programs
UB. Co ri ht in a com uter ro ram vests the exclusive ri ht to do or authorize the doing of any of the following acts in the Republic: (a) Reproducing the computer program in any manner or form; (b) publishing the computer program if it was hitherto unpublished; (c) reproducing or publishing an adaptation of the program; (d) making an adaptation of the computer program; (e) letting, or offering or exposing for hire by way of trade, directly
or indirectly, a copy of the computer program.".
10 Amendment of section 12 of Act 98 of 1978
11. Section 12 of the principal Act is hereby amended- ( a) by the substitution in subsection (1) for the words preceding paragraph
(a) of the following words: "Copyright shall not be infringed [it] by any fair dealing with a
15 literary or musical work [is used solely and then only to the extent reasonably necessary}-";
(b) by the substitution in subsection (1) for the words following upon subparagraph (ii) of paragraph (c) of the following words:
"[Provided that, subject to the provisions of section 13, the 20 expression 'used' shall not be construed as authorizing the making
of a copy of the whole or a substantial part of the work in question] Provided [further] that, in the case of paragraphs (b) and (c)(i), [that] the source shall be mentioned, as well as the name of the author if it appears on the work.";
25 (c) by the substitution for subsection (9) of the following subsection: "(9) The provisions of subsections (1) to (7) inclusive shall apply
also with reference to the making or use of an adaptation of a work.";
(d) by the substitution for subsection (10) of the following subsection: 30 "(10) The provisions of subsections [(1) to (4) inclusive and] (6)
and (7) shall apply also with reference to a work or an adaptation thereof which is transmitted in a diffusion service.";
(e) by the substitution for subsection (12) of the following subsection: "(12) The copyright in a literary or musical work [or an
35 adaptation thereot] shall not be infringed by the use thereof in a bona fide demonstration [thereof to a specific client by a licensed dealer in] of radio or television receivers or any type of recording equipment or playback equipment to a client by a dealer in such equipment."; and
40 (f) by the addition of the following subsection: " 13 An authorization to use a litera work as a basis for the
making of a cinematograph film or as a contribution of a literary work to such making, shall, in the absence of an agreement to the contrary, include the right to broadcast such film.".
45 Substitution of section 14 of Act 98 of 1978
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12. The following section is hereby substituted for section 14 of the principal Act:
"Special exception in respect of records of musical works
14. (1) The copyright in a musical work shall not be infringed by a person (in this section referred to as the 'manufacturer') who makes a [sound recording or a copy] record of the work or of an adaptation
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thereof in the Republic, whether from an imported disc, tape, matrix or otherwise, if- · (a) [copies ot] records embodying the work or [of] a similar
adaptation of the work were previously made in or imported into the Republic for the purposes of retail sale and were so made or imported by, or with the licence of, the owner of the copyright in the work;
(b) before making the [sound recording or copy] record the manu- facturer gave the prescribed notice to the owner of the copyright of his intention to make it;
(c) the manufacturer intends to sell the [copy] record by retail or to supply it for the purpose of resale by retail by another person or to use it for making other records to be so sold or so supplied; and
(d) in the case of a [copy] record which is sold by retail or supplied for the purpose of resale by retail, the manufacturer pays to the owner of the copyright, in the prescribed manner and at the prescribed time, the prescribed royalties.
(2) Where a [sound recording or copy] record comprises, with or without other material, a performance of a musical work or of an adaptation of a musical work in which words are sung or are spoken that are incidental to, or in association with, the music and no copyright subsists in that work or, if copyright does subsist therein, the conditions specified in subsection (1) are fulfilled in relation to such copyright and- ( a) the words consist or form part of a literary work in which
copyright subsists; and (b) the [copies] records referred to in subsection (1)(a) were made
or imported by or with the licence of the owner of the copyright in that literary work; and
(c) the conditions specified in subsection (1)(b) and (d) are fulfilled in relation to the owner of that copyright,
the making of the [sound recording or copy] record shall not constitute an infringement of the copyright in the literary work.
(3) For the purposes of this section an adaptation of a work shall be deemed to be similar to an adaptation thereof [contained] embodied in a previous [sound recording or copy] record if the two adaptations do not substantially differ in their treatment of the work, either in respect of style or, apart from any difference in number, in respect of the performers required to perform them.
(4) A manufacturer may for the purposes of paragraph (a) of subsection (1) make the prescribed enquiries in order to ascertain whether the previous [sound recording or copy] records referred to in that paragraph were previously made in or imported into the Republic, and if the owner of the copyright fails to reply to such enquiries within the prescribed period, the said previous [copies] records shall be taken to have been made or imported, as the case may be, with the licence of the owner of the copyright.
(5) The preceding provisions of this section shall apply also with reference to [sound recordings or copies] records of a [substantial] part of a work or an adaptation thereof: Provided that the provisions of subsection (1) shall not apply with reference to- (a) a[copy] record of the whole of a work or an adaptation thereof
unless the previous [copies] records referred to in paragraph (a) of that subsection were [copies] records of the whole of the work or of a similar adaptation; or
(b) a [sound recording or copy] record of_!! part of a work or an adaptation thereof unless the [sound recordings or copies] records previously made in or imported into the Republic as contemplated in paragraph (a) of that subsection were of, or included, that part of the work or of a similar adaptation.".
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Amendment of section 15 of Act 98 of 1978, as amended by section 2 of Act 66 of 1983 and section 2 of Act 13 of 1988
13. Section 15 of the principal Act is hereby amended by the substitution for subsection (4) of the following subsection:
5 "(4) The provisions of section 12(1), (2), (4), (5) [and], (9), (10), (12) and (13) shall mutatis mutandis, in so far as they can be applied, apply with reference to artistic works.".
Substitution of section 16 of Act 98 of 1978
14. The following section is hereby substituted for section 16 of the principal 10 Act:
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"General exceptions regarding protection of cinematograph films
16. ill The provisions of section [12(1) to] 12(1)(b) and (c), (2), ffi, (4), [inclusive and] (12) and (13) shall mutatis mutandis apply with reference to cinematograph films.
2 Where sounds embodied in a sound-track associated with a cinematograph film are also embodied in a record other than such a sound-track or in a record derived directly or indirectly from such a sound-track, the copyright in the film shall not be infringed by the use of that record.".
20 Substitution of section 17 of Act 98 of 1978
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15. The following section is hereby substituted for section 17 of the principal Act:
"General exceptions regarding protection of sound recording