Copyright in Education & The Internet in South African Law

During my RSCON3 (Reform Symposium 2011 – http://reformsymposium.com/) presentation over the weekend a question came up about my statement:  that it has to be assumed that everything on the internet is under copyright protection unless specified otherwise. The question was about where that was stated or in which ruling/law this statement can be verified. This post is my response to that question. Let’s begin with digging up some of the history around copyright law.

History and Background

The first appearance of registration of copyright and copyright notices can be traced back to the Statute of Anne (1710) that required works to be registered in the Register Book of the Company of Stationers before copyright protection was granted and that such registration had to be made public via registration notice in every printed copy. This changed with the Berne Convention.

The automatic copyright protection without the need for registration and copyright notice came about via the Berlin Revision in 1908 of the Berne Convention (1886) where copyright was deemed an automatic right granted to authors and no formalities such as registration or notice were required. According to the agreement:

Article 5(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed. Berne Convention (Paris Text 1971).

This meant that all signatories to the Berne Convention was prohibited from requiring registration or placing of copyright notices on works.

Map representing signatories to Berne Convention

This is in contrast to the Universal Copyright Convention (1952) where in Article 3 it allows countries to include in their national laws formalities around copyright protection. The UCC was essentially an alternative to the Berne Convention for countries who did not agree with certain provisions of the Berne Convention. According to the UCC, if any of the signatories to the agreement wished to include formalities such as registration in their national laws, they would have to make provision that placing of the copyright notice would have the same effect as copyright registration. Generally the copyright notice is no longer a requirement in most countries but it is seen as useful.

South African law provisions

In South African law there is no requirement for placing copyright notices on works for copyright protection to be afforded (in the case of cinematographic films, you will have to register though). It requires no formal registration, therefore it is an automatic right conferred onto authors of original and eligible works, unless there is an agreement that specifies otherwise.

So what does this all mean?

It means that all works on the Internet, even those with no copyright symbol or similar notice appearing on them, is protected by copyright. Why? Because copyright is an automatic right since it does not require registration and neither do they require notice for copyright protection to be activated. So if any person places images they have created online for example, those images are automatically protected by copyright laws unless it is specified otherwise. This would mean that any person who uses those images without permission will be infringing copyright. Similarly any person who places images online that does not belong to them or no permission was obtained from the lawful owner will be infringing copyright via unlawful distribution and reproduction of copyrighted materials.

Note that the map used above was sourced from http://en.wikipedia.org/wiki/File:Berne_Convention_signatories.svg.

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