United States of America

South Africa

Copyright and Related Rights

4. Please explain whether and how South Africa provides full retroactive protection to works, phonograms and performances from other WTO Members, as required by Berne Article 18, as incorporated through Article 9.1 of TRIPS, and TRIPS Article 14.6, and give the date back to which protection extends as to each of these categories of subject matter. Please explain in particular the effect through the operation of Section 43(a)(ii) of the Copyright Act in this regard.

Section 43(a) of the Copyright Act makes that Act applicable to all works (including foreign works) whether they were made prior to 1979 or thereafter. This general principle is subject to certain conditions of which only one is relevant to the present enquiry, namely that set forth in paragraph (a)(ii). Paragraph (a)(ii) qualifies the retroactivity of the Act by stating that the provisions of the Act cannot create copyright in any type of work in which copyright could not subsist prior to 11 September 1965 (the date on which the Copyright Act 1965, the predecessor of the current Act, came into operation). Prior to 11 September 1965 published editions were not eligible for copyright. The provision does nor preclude a particular work from enjoying copyright retroactively even though it might not have historically enjoyed such protection prior to September 1965. In essence, once a foreign country has been proclaimed as a country to which South African copyright extends, all works eligible for copyright emanating from that country will enjoy protection no matter when they were made in exactly the same way as South African works. A copy of a recent judgement of the Appellate Division of the South African Supreme Court in Appleton & Another v Harnischfeger Corporation & Another 1995 (2) SA 247 (A) dealing with the retroactivity of the Copyright Act 1978, in regard to United States works is annexed hereto. The retroactivity of South African copyright law is a very complex issue and a more detailed exposition of it can be found in Part 3 of Dean "Handbook of South African Copyright Law" and in that author's doctoral thesis entitled "The Application of the Copyright Act, 1978, to Works made prior to 1979". The court in the Harnischfeger case incidently recognised these as authoritative sources in its interpretation of Section 43(a). Section 14 of the Performers' Protection Act specifically provides that the Act shall not apply to performances which took place before its commencement, i.e. 30 December 1967. Performances prior to that date thus do not enjoy the protection of the statutory performers right. This applies equally to works of South African and foreign origin.