South African copyright law is regulated by the Copyright Act, No. 98 of 1978 (as amended) (“the Act”). The Act specifies a number of classes of works which are eligible for copyright in South Africa. Copyright is a form of intellectual property right which grants the creator (or “author”) of an original work the legal and exclusive right of use and distribution of the work. The creator may assign their rights to others in exchange for compensation, this is a transfer of their economic rights to the work. Classes of copyright specified by the Act are: literary works, musical works, artistic works, cinematograph films, sound recordings, programme-carrying signals, broadcasts, published editions and computer programs. In addition to specifying conditions for asserting copyright over a work, the Act also incorporates the concept of moral rights of creators. This is a right authors have to receive credit for their work and to protect how their work is treated.
Section 20 of the Act deals with moral rights. It says that notwithstanding the transfer of copyright in a work, the author shall have the right to claim ownership of the work and to object to any modification of the work where such action is or would be prejudicial to the reputation of the author. Moral rights are regarded as personal rights of the author which they can exert even where they do not hold the ownership rights (copyright) in a work. There is a proviso in the Act which limits the operation of moral rights and says that authors cannot object to modifications to their work which is necessary to take commercial advantage of the work. That is, an author cannot object to modification which is absolutely necessary to use the work in a way which generates income.
Moral rights can, as with any other right, be waived by the author. There are no formalities prescribed by the Act for this waiver, however it should, as with all legally sound and enforceable waivers, be in writing. Because of their personal nature, moral rights cannot be transferred to another and will terminate upon the author’s death.
Moral rights are infringed where the author is not properly attributed as the author of the work, or if the work is treated inconsistently with the Act – damaging the reputation of the author. Section 20 of the Act provides that where these infringements occur, they are treated as copyright infringements. Appropriate remedies under the Act may include a claim for damages or the author may apply for an interdict. The author may also have further remedies under common law insofar as the infringement damages their dignity, allowing them a claim for damages or similar interdict to stop the infringement.
South African law offers a degree of protection to authors’ rights in intellectual property. These protections apply both to economic right and moral rights attaching to the work. When asserting copyright infringement for the violation of an author’s moral rights, authors should ensure they have not waived their rights and should consult a professional for advice.
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About the author
Megan started her articles with Dunsters in 2020 and is a graduate of the University of Cape Town (B.COM PPE, LLB). Megan is in the commercial team at Dunsters and enjoys working on drafting all kinds of contracts as may suit our clients’ needs. Her areas of interest lie broadly in the commercial sphere, with a more specialised focus on technology and the law. Megan also writes and oversees the editing of our insights and articles.
In her spare time Megan is Chairperson of the Cape Town Candidate Attorneys’ Association, loves to paint and prefers to spend her weekends outdoors. Cold-water swimming, running and hiking, she is keen on all the outdoor activities Cape Town has to offer.