The works eligible for protection under the Copyright Act 1978 are literary works, musical works, artistic works, cinematograph films, sound recordings (phonograms), broadcasts, programme-carrying signals, published editions and computer programs.
In terms of Sections 3(1) and 4(1) of the Copyright Act, works first published in South Africa or works made available by qualified persons (being persons who are citizens of, or are domiciled or resident in South Africa, in the case of individuals, or bodies corporate organised and existing under the laws of South Africa, in the case of juristic persons) enjoy copyright.
In terms of Section 37 of the Act, the relevant Minister has made regulations in terms of which the Act applies also to works originating from scheduled countries (being countries listed in Schedule 1 to the regulations, which are contained in General Notice No. 136 of 1989). More particularly, the Minister has provided the following:
-in relation to literary, musical or artistic works, cinematograph films, sound recordings, published editions and computer programs first published in scheduled countries, the act will apply in the same way as it applies to those types of works first published in South Africa;
-the Act will apply to persons who are citizens of or are domiciled or resident in a scheduled country in the same way as it applies to persons who are citizens of or domiciled or resident in South Africa;
-the Act will apply also to bodies incorporated under the laws of a scheduled country as it applies in relation to bodies incorporated under the laws of South Africa.
The list of scheduled countries was last revised in Government Notice 1290 in the Government Gazette 16867 of 15 December 1995. The list is reproduced in the Annex.
The list has again recently been revised and is now awaiting publication in the Government Gazette. The list will be revised from time to time to ensure that all new WTO Members who may not be listed are included.
Subject to what follows, this effectively means that works emanating from scheduled countries are protected in exactly the same way under the Copyright Act as are works emanating from South Africa. Exceptions apply in the case of broadcasts, sound recordings and published editions.
The protection granted in terms of the regulations to foreign sound recordings and published editions is subject to the qualification that works of this nature originating from a foreign country will only enjoy protection in South Africa to the extent that protection in the nature of, or related to, copyright is granted in that country to such works first published in South Africa or made by a South African qualified person, and such works do not enjoy any wider protection in South Africa than is enjoyed by South African works in their country of origin. By consequence the right to enforce a particular restricted act only exists to the extent that the law of the country of origin provides for that restricted act in its own law.
In order to qualify for protection under the Performers' Protection Act, a performance must take place, be broadcast live, or be first recorded in South Africa or a country which is a party to the Rome Convention and which grants reciprocal rights to performers in respect of their performances in South Africa (Section 4 of the Act). Steps have been undertaken to extend the scope of Section 4 of the Act to include all WTO Members not parties to the Rome Convention.
Regarding the question (by the US) regarding national treatment with respect to the distribution of levies for private copying, the following: Section 12(1) of the Copyright Act read with Sections 15(4), 16, 17, 18, 19A and 19B exempts from infringement any "fair dealing" with a work for purposes of private study, personal private use, criticism or review of a work or reporting current events. This is subject to the proviso that no dealing for purposes of research or private study or use with a cinematograph film, sound recording or computer program is exempted. Further exemptions from infringement in the case of private copying are contained in Chapter 1 of the Copyright Regulations 1978, read together with Section 13 of the Copyright Act. Where private copying does not fall within any of the aforementioned exemptions and is unauthorized, infringement of copyright occurs. A licence is therefore required for private copying in these instances. There is no organized licensing scheme for private copying in place nor are there any collecting agencies operating in this field in South Africa. Accordingly no levies (other than negotiated licence fees) are collected or distributed for private copying in South Africa at the present time. The question of national treatment in respect of such levies does therefore not arise.