Copyright

KISCH IP has experience in all aspects of copyright law. We advise clients on how and when copyright exists, how to assign rights to another party and how to apply for a copyright licence. We also assist in litigation when copyright has been infringed.

Subsistence of copyright

There can be no copyright in ideas. Copyright does, however, exist in the material representation of such ideas. It is neither necessary, nor possible, to register general copyright in South Africa.

Provided that certain requirements are met, copyright will exist automatically. These requirements are that the work must be original and reduced to material form. Examples of works that enjoy copyright protection are literary and artistic works, musical works, sound recordings, cinematograph films, published editions and computer programmes.

Copyrights in cinematographic films

South African copyright law provides for the registration of copyright in cinematograph films.

Registration merely confirms existing copyright. This means that unregistered films enjoy the same copyright as those that are registered. The difference is that, in the case of unregistered films, the actual subsistence of copyright will have to be proven. This would not be necessary in the case of a registered film.

An application for registration of copyright is submitted and examined by the Registrar of Copyright. If accepted it is advertised for opposition purposes; if unopposed, registration is granted.

Assignment of copyright

The author of a copyrighted work is, in most instances, also the first owner of the work and has the right to assign copyright in the work to another person. On assignment of copyright, all the author’s rights will pass to the assignee. KISCH IP has experience in all aspects of copyright law. We advise clients on how and when copyright exists, how to assign rights to another party and how to apply for a copyright licence.

All assignments of copyright must be in writing and signed by the assignor. There must also be mutual intention between the assignor and assignee to pass the ownership of the copyright to the assignee. Assignment of copyright in future works is also possible and becomes effective as soon as the work is created.

Copyright licence

The effect of a copyright licence is essentially an undertaking by the copyright owner not to sue the party that holds the licence. It confers no rights to take action against third parties.

The exception is an exclusive licence, which places the licensee in the owner’s position for the duration of the licence, even to the exclusion of the owner. When the licence terminates, no matter its nature, all rights revert to the copyright owner.

Licences do not need to be recorded in writing and may even be inferred by conduct, although a written licence agreement is always advisable to create certainty.

Licensing

The licensing of intellectual property can be riddled with hidden pitfalls if not adequately dealt with from the outset. KISCH IP provides professional advice regarding licence agreements and the terms and conditions under which such relationships should proceed. We also prepare licence agreements for intellectual property rights and assist with disputes between parties concerning existing licence agreements.

Litigation

Copyright is infringed if there is unauthorised copying, a reproduction or an adaptation of a substantial portion of a copyrighted work. Copyright may also be infringed by dealing in infringing copies or permitting an unauthorised public performance of a protected literary or musical work.
Copyright infringement, in addition to being a civil offence, is, in many circumstances, a criminal offence.

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